Arqiva Ltd v Kingsbeck Ltd

JurisdictionScotland
CourtSheriff Appeal Court
JudgeSheriff PJ Braid,Sheriff Principal DCW Pyle,Sheriff HK Small
Judgment Date27 Jun 2019
Docket NumberNo 10

[2019] SAC (Civ) 28

Sheriff Principal DCW Pyle, Sheriff PJ Braid and Sheriff HK Small

No 10
Arqiva Ltd
and
Kingsbeck Ltd
Cases referred to:

EE Ltd v Islington London Borough Council [2019] UKUT 53 (LC); [2019] RVR 178

SSE Telecommunications Ltd v Millar [2018] SAC (Civ) 14; 2018 SC (SAC) 73; [2018] RVR 269; 2018 GWD 17-225

Heritable property and conveyancing — Wayleave — Telecommunication wayleave rights — Whether telecommunications network operator entitled to share with other operators access to and occupation of third party's land — Telecommunications Act 1984 (cap 12), sch 2 — Communications Act 2003 (cap 21), sec 106

Arqiva ltd raised a summary application in the sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark against Kingsbeck Ltd seeking orders in respect of electronic communications apparatus. Following debate, the sheriff found Arqiva entitled to the remedy sought, namely a lease containing sharing provisions, and allowed a proof restricted to quantum of consideration therefor. Kingsbeck Ltd appealed to the Sheriff Appeal Court.

Schedule 2 of the Telecommunications Act 1984 (cap 12) (‘the 1984 Act’) provided a code for the operation of communications networks (‘the code’). Paragraph 2(1) of the code provided that the agreement of the occupier of any land was required for conferring on the operator a right for the statutory purposes, inter alia, to execute any works for installation, maintenance, adjustment, repair or alteration of electronic communications apparatus, to keep such apparatus installed, or to enter the land to inspect any apparatus kept installed for the purposes of the operator's network. The statutory purposes were defined in para 1(1) of the code as the purposes of provision of the operator's network, which in turn was defined as so much of any electronic communications network or conduit system provided by that operator as was not excluded from the application of the code under sec 106(5) of the Communications Act 2003 (cap 21). Paragraph 5 of the code provided that an operator might apply to a court, in the absence of the occupier's agreement, for an order conferring the rights set out in para 2(1).

The defender (‘Kingsbeck’) was the heritable proprietor of Unthank Farm, Coulter, Biggar, including an area of ground extending to 0.09 hectares (‘the site’) upon which stood an electronic communications mast owned and operated by the pursuer (‘Arqiva’). Arqiva provided terrestrial television and radio broadcasting services through its electronic communications network, which, inter alia, required the installation of electronic communications masts across the country, between which electronic signals could be relayed. In particular, Arqiva required a mast in order to provide BBC services to households in Lanarkshire. Arqiva shared the site with certain mobile network operators who required to have their own antennae attached to Arqiva's mast in order to provide their networks to consumers in Lanarkshire. Thus, the equipment on the site included Arqiva's mast, which it shared with other users, other shared equipment and equipment owned by the third-party operators but not shared to any extent with Arqiva.

Arqiva previously occupied the site pursuant to an agreement with Kingsbeck. In October 2015, Kingsbeck served notices to quit on Arqiva and other operators requiring them to remove from the site, and counter-notices were served by all of the recipients in order to preserve their rights to continue to occupy the site and ensure continuity of service to consumers in terms of para 21(3) of the code. Arqiva proposed draft terms of lease in respect of the site and a formal notice seeking the agreement of Kingsbeck thereto. No response was received to that notice within 28 days and, consequently, Arqiva applied to the court for an order under para 5 of the code, which would confer the rights specified in the draft lease and enable all existing occupiers to remain on the site.

Arqiva conceded that the right to share a third party's land was not found within the code itself; it was not a code right. However, as exclusive occupier under a lease, it was entitled to confer code rights on others, whether or not Kingsbeck approved of them. The only live issue was that of compensation, which could be dealt with in the context of the lease. Kingsbeck conceded that code rights could be granted by a lease of land, but each occupier required to bring its own application seeking code rights in order to enable their occupation of the site. It was not open to Arqiva to bring an application permitting them to share the site, as they pleased, with all existing and any number of future operators, taking access over Kingsbeck's adjoining land. Kingsbeck, as landowner, was entitled to exercise control over who entered the site and on what terms.

Held that: (1) code rights may be granted by means of a lease of land (ex concessu), and might be the only means where the operator required exclusive use to exercise code rights effectively (para 30); (2) where a lease of land was required, the normal incidents of a lease had to follow, including the right to exclusive occupation, subject to negotiation or determination by the court of the terms and conditions of the lease, having due regard to the rights and obligations of the code operator, in particular the right and obligation to share its equipment including the mast (paras 31, 32); (3) it was entirely consistent with the principle that the operator, once granted a lease, should have the right of determining who could or could not enter upon the site and on what terms, albeit it did not follow that an operator should have an exclusive right to permit work to be done on the site (such as the erection of a new building) (paras 32, 35); and appeal allowed.

SSE Telecommunications Ltd v Millar 2018 SC (SAC) 73 and EE Ltd v Islington London Borough Council[2019] RVR 178applied.

The cause called before the Sheriff Appeal Court, comprising Sheriff Principal DCW Pyle, Sheriff PJ Braid and Sheriff HK Small, for a hearing, on 20 and 21 March 2019.

At advising, on 27 June 2019, the opinion of the Court was delivered by Sheriff PJ Braid—

Opinion of the Court—

Introduction

[1] This appeal concerns the telecommunications code contained in sch 2 to the Telecommunications Act 1984 (cap 12) as amended by the Communications Act 2003 (cap 21) (‘the 2003 Act’) (‘the code’). (That code has now been superseded by a new code, introduced by the Digital Economy Act 2017 (cap 30), but the new code does not apply to this action, save in relation to transitional provisions.) Although, perhaps somewhat unusually, the parties to this appeal could not, before us, agree what question fell to be asked of the court, let alone how it should be answered — about which, more later — the core issue raised by this appeal is the extent to which a code operator under the code is entitled to share not only its own equipment, but access to, and occupation of, land owned by a third party.

[2] The former question — sharing of equipment — was addressed in the decision of this court in SSE Telecommunications Ltd v Millar, where it was held that a code operator is entitled to permit others to use its equipment situated on, or passing over, a third party's land without obtaining that third party's permission. However, the separate, and broader, question of sharing a third party's land has not been judicially determined.

Background

[3] Most of the factual background is agreed. We set out the statutory framework, including the relevant provisions of the code, below but for present purposes it is sufficient to note that the respondent is a code operator in terms of the code. It is the statutory successor to the Independent Broadcasting Authority and it, and its sister company, Arqiva Services Ltd, is the sole provider, owner and operator of terrestrial television broadcasting services in the United Kingdom. The respondent also has a market share of approximately 90 per cent for radio broadcasting. The pleadings contain fuller details of the role which the respondent and its said sister company play in providing digital terrestrial television, including Freeview, throughout the United Kingdom but of particular significance, perhaps, is that the respondent is bound to provide BBC services to households in Lanarkshire until 2034. It provides such services by means of its electronic communications network, which inter alia requires the installation of electronic communications masts up and down the country, to and from which electronic signals can be relayed. In particular, it requires such a mast in Lanarkshire.

[4] Enter the appellant. It is the heritable proprietor of Unthank Farm, Coulter, Biggar, within which lies an area of ground extending to 0.09 hectares (not 0.929, as stated in the crave) (‘the site’), upon which stands an electronic communications mast owned and operated by the respondent. The site is telecommunications gold dust, since without the mast on it, a significant number of households in Lanarkshire, which are otherwise situated within a telecommunications blackspot, would be unable to receive any television signal. The mast enables television coverage to be provided to approximately 2,571 households within the blackspot, which, the respondent avers, equates to provision of television broadcast to approximately 6,000 people. The site also enables the transmission of BBC radio to approximately 6,171 households within the said blackspot, and coverage of 112 kilometres of roads.

[5] The value of the site does not end there. Under agreements previously entered into, the respondent currently shares the site with certain mobile network operators, namely: EE, Vodafone, O2, BT and ITS. To enable those operators to provide their respective networks to consumers in Lanarkshire within the blackspot, they have their own antennae...

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