Electronic Communications Code Update: Upgrading and Sharing
Sarah Diak and Alicia Jewitt, 20th November, 2020
In Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust  UKUT 282 (LC) the Upper Tribunal (“the UT”) reviewed and decided the terms to be included in an electronic communications code agreement in relation to upgrading and sharing of equipment.
By the Electronic Communications Code (“the Code”) operators can 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. In circumstances where the UT imposes a Code agreement, the terms to be imposed are set out in the Code. Under paragraph 17 of the Code there is a right for the equipment to be upgraded and shared between Code operators provided two conditions are met:-
Any changes to the apparatus must have no adverse impact on its appearance or no more than a minimal adverse impact; and
No additional burden can be imposed on the other party/owner, this may include anything that adversely impacts the owner’s enjoyment of the property or causes them a loss.
In this case the operator, Cornerstone Telecommunications Infrastructure Ltd (“Cornerstone”), sought to install electronic communications apparatus on the roof of a block of flats in South London owned by London & Quadrant Housing Trust (“the Trust”). Cornerstone and the Trust agreed to enter into a Code agreement however they were in dispute regarding equipment rights, upgrading and sharing. Cornerstone sought unrestricted rights to upgrade and share whereas the Trust disputed this on the basis that upgrade rights should be qualified to refer to the conditions as set out in paragraph 17 of the Code. The Trust also wanted the agreement to limit Cornerstone’s right to install apparatus by reference to a list annexed to the agreement (known as an “equipment cap”).
The UT considered paragraph 23 of the Code which deals with the terms of the agreement imposed by the Code. The UT concluded that paragraph 23 of the Code did not create a presumption in favour of the operator that required the UT to use the operator’s proposed terms as a starting point. The UT can exercise a wide discretion over terms and it will do so with the statutory purpose of the Code in mind.
The UT determined that they would not include an equipment cap in the agreement. An equipment cap had been sought on grounds of safety and to provide a baseline against which the conditions found in paragraph 17 of the Code could be measured. It was held that neither of these reasons justified the equipment cap and stated that these grounds could be met by other means i.e. a photographic record could be agreed following completion of the installation.
The UT confirmed that the minimum rights to upgrade and share contained in paragraph 17 of the Code were not appropriate between an infrastructure provider and site provider for a term of ten years. Both the nature of Cornerstone’s business and the duration of the agreement were relevant in reaching this decision. One of the Code’s core objections is the facilitation of new technology for public benefit and therefore to impose terms which would impede this significantly would diminish this benefit. The UT held that Cornerstone should be permitted to upgrade the apparatus without limit and to share without restrictions with up to two other providers and also to share further if the conditions in paragraph 17 of the Code were satisfied.
Points to note
• Equipment caps are no longer considered appropriate, as such an advantage to Operators.
• The sharing and upgrading rights under paragraph 17 of the Code will not always be generous enough in which case the UT has the jurisdiction to impose such rights.
We have a team of specialist solicitors who advise both operators and landowners on Code related matters. If you occupy land without a subsisting agreement, own land occupied by an operator or have a telecoms-related query and would benefit from specialist advice, please get in touch.
Sarah Diak - click or tap to view profile and contact details.
Alicia Jewitt - click or tap to view profile and contact details.