Electronic Communications Code Update: Occupying land without Code Rights

Sarah Diak and Alicia Jewitt, 8th July, 2020

In Arqiva Services Ltd v AP Wireless II (UK) Ltd [2020] the Upper Tribunal (Lands Chamber) (“the UT”) has confirmed that an operator in occupation of land without a written agreement is not occupying under a ‘subsisting agreement’ for the purposes of the Electronic Communications Code 2017 (“the Code”). Accordingly, the UT has no jurisdiction to order the imposition of Code rights under the Code.

The Code

By the Code operators acquire certain rights for the installation and maintenance of electronic communications apparatus on, under or over land. These rights can be acquired by either a written agreement or imposed by the UT. The Code empowers the UT to grant an order that a relevant person must confer a Code right or be bound by a Code right that is exercisable by the operator. The Code also enables an operator to apply for temporary Code rights where there is existing apparatus on the land and the relevant person has the right to require its removal. As a preliminary step to seeking any such rights the operator must give the relevant person written notice under the Code.


Facts

AP Wireless II (UK) Ltd (“the Owner”) is the freehold owner of land in Towcester ("the Land") which, Arqiva Services Ltd (“the Operator”) had been occupying pursuant to a lease. The lease was contracted out of the security of tenure provisions contained in Part II of the Landlord and Tenant Act 1954.

In October 2016 the lease expired and the Operator remained in occupation paying rent and other sums. Following expiry, the parties were in negotiations for the grant of a new lease. The negotiations included discussions for the Operator to remain in occupation under the existing arrangement for a further five years; no agreement was formally entered.

The Code came into force on 28 December 2017., The Operator wanted to acquire Code rights and served Code notices on the Owner.

The UT had to consider the following preliminary issues:-

  1. What was the Operator’s status after 16 October 2016?
  2. As at 28 December 2017 did the Operator occupy under a ‘subsisting agreement’?
  3. Did correspondence between the Operator and the Owner create a 5 year licence?
  4. If there was no subsisting agreement and the Operator had not acquired Code rights by agreement, did the UT have jurisdiction to impose an agreement under the Code?


Outcome

  1. Following the expiry of the lease the Operator was a tenant at will.
  2. An unwritten tenancy at will was not a ‘subsisting agreement’.
  3. The correspondence did not create a 5 year licence; the Operator’s status had not changed, it remained as a tenant at will.
  4. The Operator remained in occupation without rights under either the Code or the 1984 Code.
  5. The UT referred to the Court of Appeal’s interpretation of the Code in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 (“Compton Beauchamp”) being that an operator in occupation of land without Code rights could not make an application under the Code.
  6. The UT had no jurisdiction to impose a Code agreement in favour of the Operator.


Points to note

The decision places many operators in a vulnerable position given that so many operators continue to occupy land as tenants at will following the expiry of agreements before 28 December 2017. The UT has expressed its dissatisfaction with the decision which, in the UT’s opinion, is inconsistent with the policy of the Code. However, given the Court of Appeal’s findings in Compton Beauchamp, the UT had no choice but to follow the same. The UT has, however, granted leave to appeal and no doubt we will be hearing from the Court of the Appeal on the point shortly.


Need advice?

We have a team of specialist solicitors who can advise both operators and landowners on Code related matters. If you occupy land without a subsisting agreement or own land occupied by an operator or have a telecoms-related query and would benefit from specialist advice, please get in touch.


Authors:

Sarah Diak - click or tap to view profile and contact details.

Alicia Jewitt - click or tap to view profile and contact details.

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