In this case the operator sought an order terminating an existing code agreement (the "Existing Agreement") and entry into a new agreement conferring code rights on the operator. The Code (as opposed to the 1954 Act) applied to the termination of the Existing Agreement and the relevant notices were served by the operator. Terms for a new lease could not be agreed so the matter was referred to the Tribunal.
The key points decided by the Tribunal were:
- The Scottish Court of Session (Inner House) case of EE Limited / Hutchison 3G Limited v Duncan applies in England and Wales. Duncan found that an application for a new code agreement can be allowed even though no site-specific justification for a new agreement is identified.
- The O'May decision linked to the 1954 Act does not strictly apply to the Code; there are other considerations in play under the Code, as compared with under the 1954 Act. The court should decide what order to make taking into account all the circumstances (including the terms of the existing agreement) but, in particular, the factors in paragraph 34(13) of the Code. Then, having done so, specify the terms of the new code right or new agreement, where that is required.
- If a termination notice proposed termination and a new agreement on terms annexed, the operator cannot apply to the court for modification of the existing agreement on different terms. Either a fresh notice has to be served or the landowner has to waive the requirement.
- Emphasis was placed on the intention of the Code to confer broader rights and more flexibility on operators in view of the impending arrival of 5G networks and new technology.
This is the decision of the Tribunal on two preliminary issues in this reference, which were directed to be tried by order dated 4 February 2021. They raise important questions of law and practice about when and how applications to the Tribunal for a new code agreement under the Electronic Communications Code, as now set out in Schedule 3A to the Communications Act 2003 (“the Code”), can be made.