Yesterday (7 December 2021) the Court of Appeal handed down its latest decision on the electronic communications code (the "Code"). This case specifically concerned the extent to which the operator could share rights and upgrade under the terms of an agreement imposed by the Tribunal.
The parties agreed that the Tribunal had power to impose terms on either party. However, there was a debate about which paragraphs of the Code applied and, whilst the Court of Appeal found that the Tribunal had relied on the incorrect sections of the Code, that in itself was not enough to overturn the decision.
Section 34 of the Code
The Court of Appeal also found that paragraph 34(12) of the Code, which states that the court must "also have regard to the terms of the existing code agreement", and which counsel for the site owner argued was akin to section 35 of the Landlord and Tenant Act 1954 (the "1954 Act"), was not comparable as "things said about the latter will not necessarily apply to the former"; the Code has very different purposes to that of the 1954 Act.
However, the Court of Appeal agreed that the terms of an existing code agreement cannot be ignored. The weight to be attached to the fact that a term was included in the existing code agreement will, in part, turn on its consistency with the aims of the Code. If the relevant term is not in conflict with those aims, the case for replicating it in the new agreement may be compelling. The terms of a code agreement entered into since the introduction of the Code are more likely to accord with its purposes than those of an agreement which pre-dates the Code.
Section 17 of the Code
Paragraph 17 of the Code provides for an operator to be entitled to upgrade or share if any changes to the electronic communications apparatus have "no adverse impact, or no more than a minimal adverse impact, on its appearance" and the upgrading or sharing "imposes no additional burden" on the site provider.
The Tribunal saw this paragraph as operating as "a floor". Counsel for the site provider took issue with this approach, arguing that it instead sets a benchmark or standard.
The Court of Appeal found that, while paragraph 17 provides a starting point and it is incumbent on an operator seeking more extensive rights to explain why, it need not establish "pretty striking circumstances" or "pretty compelling circumstances". Nor is it the case that an application for wider rights is to be approached on the basis that it is inherently improbable that such rights are appropriate. Each application must be assessed on its particular merits.
Another success for operators!
This case is also quite timely as it deals with some of the issues that that Government consulted on earlier this year. The Government has now had the opportunity to consider the comments and has provided its responses.
Some key intentions of the Government are:
- not to revisit the statutory valuation framework. This will be disappointing for many landowners who have seen their income streams significantly suffer since the introduction of the Code
- to introduce a duty for operators to consider ADR before making an application to the courts and require the courts to take account of any unreasonable refusal to engage in ADR when awarding costs once the dispute has been determined
- to introduce a process that will be faster, cheaper and easier for operators to gain access to land and install, (as well as have rights to subsequently maintain and upgrade) digital infrastructure in situations where a landowner/occupier has failed to respond to repeated requests for access.
- to amend the law so that if an operator or operators are exclusively occupying the land, the operator will be able to obtain Code rights from whoever would be able to grant those rights if the operator was not in occupation of the land. This will normally be the landowner, or whoever has rights to control the use of the land etc.
- not allowing the courts to modify an ongoing Code agreement
- to leave in place the existing rights to upgrade and share under paragraph 17 of the Code (as referred to above)
- amend paragraph 3 of the Code to ensure that sharing is considered a Code Right (again considered in the above case)
- to introduce an automatic right for operators to upgrade and share apparatus which is currently excluded from paragraph 17, regardless of when it was installed and, for pre-29 December 2003 apparatus, whether or not there is a current Code agreement in place, providing certain conditions are satisfied
- to amend legislation that applies to Code agreements currently excluded from the scope of Part 5 so that the procedures for dealing with any renewal dispute, and the terms of any new Code agreement (including any financial terms) imposed will be more closely aligned to Part 5, where the main aim of that agreement is to confer Code rights. In England and Wales, this means the Government will introduce changes to the 1954 Act
- to include provision to transfer disputes under the 1954 Act from the County Court to the First-Tier and Upper Tribunal
- where the parties to an expired Code agreement are unable to agree what the terms of a renewal agreement should be, and the matter is being brought before the courts, then both parties should have equal opportunity to ask the court to impose modified terms on an interim basis.
It is not yet known exactly when these changes will be implemented but we will be closely watching this space…
Access to a good digital network has become even more important recently, with many of us being reliant on digital infrastructure to work or access vital services such as healthcare or education. It is crucial that such networks are available to the entire population, across the whole of the UK