Upper Tribunal determines relationship between Electronic Communications Code and 1954 Act


Cornerstone Telecommunications Infrastructure Limited v (1) Ashloch Limited (2) AP Wireless II (UK) Limited [2019] UKUT 0338 (LC) Property: “Windsor House” The Upper Tribunal was asked to determine whether it has jurisdiction under Part 4 of the Electronic Communications Code to impose Code rights over land in favour of an operator which is already in occupation of that land, holding over under a tenancy by virtue of s. 24 Landlord and Tenant Act 1954. The tenancy in question had been granted before the ‘New Code’ had come into force, and hence it was a ‘subsisting agreement’ for the purposes of the transitional provisions at Schedule 2 to the Digital Economy Act 2017. The transitional provisions exclude Part 5 (which deals with renewals, termination and modification of code agreements) in relation to subsisting 1954 Act tenancies. The Claimant argued that since the transitional provisions do not exclude Part 4 (under which an operator can seek the imposition of a code agreement), the provisions of that Part must apply to a subsisting agreement. The Tribunal rejected the contention that it had jurisdiction, holding that Part 4 simply did not apply to operators in situ, subject to very limited exceptions. The “essential principle” of Lewison LJ Compton Beauchamp[1] was found to be fatal to the Claimant’s case. The Deputy President held at [87] that: “An operator in situ under a subsisting agreement is in the same position as an operator in situ under an agreement made under Part 2 or imposed under Part 4; that status does not confer the right to give notice under paragraph 20, except for the very limited purposes of obtaining interim or temporary rights.” Thus no standalone paragraph 20 agreement can be sought by an operator in situ regardless of whether it is a 1954 Act tenant holding over or not. The consequence is that operators cannot seek to improve the terms of their code agreements during the term. A 1954 Act tenant under a subsisting agreement must renew under the provisions of that Act; other operators can apply for new or improved rights under Part 5 if their agreement has come to an end. Once a new tenancy is granted by the County Court under the 1954 Act, that tenancy will have been granted after the coming into force of the New Code, and hence by s. 43(4) of the 1954 Act that new tenancy will not have protection under the 1954 Act. The Deputy President rejected the contention that this would mean that such a tenancy would fall into a “black hole” and receive no protection. Rather, para 34(8) of the New Code deem it to be an agreement under Part 2 of the New Code, and the Code will apply to it (para [108] of the judgment). Jonathan Wills acted as junior counsel for the successful Second Respondent, AP Wireless. [1] Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755

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