Today, 22 June 2022, the Supreme Court handed down its judgment in three appeals relating to telecommunications equipment.
In summary, it was success for the operators. The Supreme Court reiterated that the purpose of the Electronic Communications Code, which came into force on 28 December 2017 (the “New Code”) was to improve the availability of digital technology in this fast moving sector. Therefore, an "operator" who is in occupation of land by virtue of the existence of an existing mast could be distinguished from an owner "occupier" and could, in theory, be granted new rights.
However, all was not lost for landowners. The Supreme Court made clear that modifying current agreements is not permissible. Parties should keep to their original bargains and the New Code should not be available to side step agreements.
In respect of the three individual appeals though, the outcomes were slightly different:
- Compton Beauchamp - This appeal was dismissed as the telecoms operator in occupation of the site was Vodafone and not the landowner Compton Beauchamp, to which Cornerstone had applied for New Code rights.
- Ashloch – This decision was the most complicated. The equipment was installed on the basis of a tenancy that was protected by the Landlord and Tenant Act 1954 (the "1954 Act"). Accordingly, this gives security of tenure to business tenants and permits the tenant to apply for a new lease when its initial term expires. The 1954 Act prevails over the New Code in this regard. The Supreme Court was unclear as to whether New Code rights or renewal rights were being sought by the operator. Therefore, further submissions were requested from the parties prior to deciding the outcome of this appeal.
- On Tower - This appeal was allowed. The equipment was installed by On Tower under an agreement that was contracted out of the 1954 Act, which had expired. Therefore, there was no “subsisting agreement” under the New Code. Accordingly, there was no other barrier to granting a new agreement.
Landowners and operators alike will welcome this judgment as it provides clarity on the situation where existing masts are in situ and the operator wishes to seek better/renewal rights. Whilst some operators might find some of the comments of the judgment frustrating, as each case will be fact specific, the judgment ultimately falls to their favour. Overall, another triumph for technology in the 21st century!
One must bear in mind that the Code was devised with the knowledge that on the one hand, operators will need a long fixed term interest in the land to justify their investment in installing the ECA on site, but on the other hand that this is an industry in which technology develops very quickly and where the Government’s policy is that new improvements to digital infrastructure are rolled out across the country swiftly.
https://www.supremecourt.uk/cases/docs/uksc-2019-0225-judgment.pdf
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