The Electronic Communications Code - Is it still good to talk?

It's been a little over 18 months since the new Electronic Communications Code (the "Code") came into force. Perceived to be more favourable to Operators than landowners, decisions made by the Upper Tribunal ("Tribunal") have done little to re-balance this. Cases have come thick and fast, with Operators testing strength and flexing muscles. So, what's new?

The Tribunal will interpret Code Rights very broadly

In Cornerstone Telecommunications Infrastructure Ltd ("CTIL") v The University of London (2018) the Tribunal decided an Operator must be given access to land and buildings to carry out a site survey before Code Rights had been granted. The premise being that an Operator needs to be able to find out if the site is suitable for its network. Tactically blocking access, in the hope an Operator will look elsewhere, isn't acceptable.

Rents have been hammered by the 'no scheme valuation' where the value of a site to the Operator for the purpose of its network is ignored

EE Ltd and Hutchison 3G UK Ltd ("EE") v the London Borough of Islington (2018) explained that historic 'old code' rents are not valid comparators for new Code rents. EE nominally offered £1 as there was no alternative use for the site, Islington wanted circa £13,000. The Tribunal held land value depends on the characteristics and potential uses, not the number of bidders. If there is no alternative demand, a nominal consideration of £50 for Code Rights may be payable. £2,551.77 was imposed because EE had agreed this in open correspondence.

The Tribunal has no jurisdiction to listen to 'old code' matters. There must be a new Code element

If the new Code doesn't apply to a claim, the Tribunal has no jurisdiction, even if the claim has merit. In Elite Embroidery Limited v Virgin Media Limited (2018) the cable was installed under the 'old code'.

Code Rights can't be granted to an Operator if it is not in occupation of a site

In CTIL v Compton Beauchamp Estates Limited (2019), Vodafone remained in occupation after its lease had ended by arguing it was a periodic tenant. CTIL, a joint venture between Vodafone and Telefonica, asked the Tribunal to grant it a new Code agreement. The Tribunal refused on the basis that a landowner couldn't grant Code Rights to a party who isn't in occupation.

The Tribunal will be careful when dealing with possession of private property

Ambiguity in the Code will be looked at in a way that protects individual's property rights. In CTIL v Richard Gregory Keast (2019) the Tribunal took a strict approach and decided a landowner's property rights must be considered and must be caused as little interference as possible.

A landowner can't request removal of equipment on neighbouring land if it didn't interfere with access when it was installed

In Evolution (Shinfield) LLP ("Evolution") v British Telecommunications plc ("BT") (2019), Evolution wanted BT to move a cabinet sited on neighbouring land, at BT's cost (circa £275,000) so it could create a new access road. Evolution argued landowners are entitled to request Operators to remove equipment interfering or obstrucing access. The Tribunal held the obstruction had to exist when the cabinet was first installed not for future access.

If you would like more information in relation to the above, or any other telecoms-related matters, please contact Barry Richards or Philip Myers on 0345 126 4374.