Supreme Court rules on operation of new Electronic Communications Code

June 23, 2022

The Supreme Court has issued its decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and others [2022] UKSC 18.

The case was about the grant to telecommunications operators of “code rights” enabling them to install and operate their network electronic communications apparatus (ECA) on land not owned by them. The main issue was if and how an operator who has already installed ECA on a site can acquire new or better code rights from the site owner.

Code rights are governed by the Electronic Communications Code in a schedule to the Communications Act 2003. It states that “a code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator”. Such an agreement can be made with the consent of the site owner, or failing that, by an operator applying to the Upper Tribunal.

In this case, the dispute between the parties had reached the Court of Appeal. It concluded that when an operator has already installed ECA on land, it will often be both the operator and occupier of the land under the Code. As an operator cannot enter into an agreement with itself, the Court of Appeal concluded that in those circumstances an operator is precluded from applying for new code rights.

This has implications for the many thousands of agreements which were already in place between operators and site owners at the time the Code came into effect, replacing an older one in the Telecommunications Act 1984. The change from one to the other was covered by transitional provisions which determined which kinds of old code agreements would be treated as “subsisting agreements” and subject to the new Code.

The appellants were mobile network operators. They installed ECA on land owned by the respondents under the old code. Such agreements tended to be long term and even after they expired, some of the operators simply kept their ECA installed on the land without the site owner objecting. However, the operators wanted to improve the security of their position on the land by applying for new code rights.

The appellants argued that under the Code, an operator with ECA could not be the “occupier of the land”, and therefore that the presence of an operator’s ECA on land should be disregarded so that they can apply to the site owner or to the tribunal for new code rights.

The respondent site owners said that the telecoms operators can only change their rights under Part 5 of the Code once the initial period covered by the agreement comes to an end and the operator cannot apply for new rights to be conferred under the new code until then.

The Supreme Court’s judgment

The main issue was who is the “occupier of the land” – if the word “occupier” incudes an operator who is presently on the site as a result of having installed and operated ECA there, or alternatively whether you must ignore the presence of that operator’s ECA.

The Supreme Court said that word “occupier” has no fixed meaning but relies on the context. It ruled that that an operator which is already a party to a code agreement can only apply to the Tribunal to modify the terms of existing code rights it already has once Part 5 of the Code becomes available. This is because parties should generally be kept to their bargains although they can seek a consensual variation.

However, this does not prevent an operator on site from being able to obtain additional code rights for the same land. The Supreme Court concluded that the “operator” seeking a code right is different from the “occupier of the land”. This is an industry where technology develops quickly, and UK government policy is to encourage the roll out of new digital infrastructure across the whole country. This would be impeded if operators could not apply for the new rights they need for their network simply because their ECA is already installed on the site. The bar on applying for new rights would also operate in an arbitrary way because not every installation of ECA on a site by an operator would result in that operator becoming the ‘occupier’ of the site under the Court of Appeal’s test. There is no reason why Parliament would have wanted an operator who has to install a mast in a closed-off area in a rural setting to be in a different position under the code from an operator who simply attaches an antenna to the roof of an urban building. The Court of Appeal’s interpretation of the Code would also lead to unnecessary disputes about whether an operator was the occupier of the site or not. The Supreme Court also ruled that there are other provisions of the new code which were drafted on the assumption that an operator can apply for new code rights even if they already have ECA installed on the site.