Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

Hearing dates: Tuesday 8 th October 2019

Approved Judgment

The main issue on this appeal is whether the Upper Tribunal (the “UT”) has jurisdiction to require a freeholder who is not in occupation of land to confer rights under the Electronic Communications Code (“the Code”) on an operator, at a time when there is another operator in occupation of the land exercising code rights. The UT (Martin Rodger QC, Deputy President and PD McCrea FRICS) held that it had no such jurisdiction. Ms Tozer QC, for Cornerstone, disputes this conclusion. Cornerstone's appeal is brought with the permission of the UT. Their decision is at [2019] UKUT 107 (LC), [2019] RVR 247. An appeal to this court from a decision of the UT is confined to an appeal “on any point of law arising from a decision made by the [UT] other than an excluded decision”: Tribunals, Courts and Enforcement Act 2007 s. 11 (1).

Until the enactment of the Code, an operator of electronic communications equipment was entitled to acquire rights under Schedule 2 to the Telecommunications Act 1984. There was wide dissatisfaction with that code for a number of reasons. First, it was complex and extremely difficult to understand. Second, it was outdated. Third, there was evidence of concern that it was making the rollout of electronic communications equipment more difficult. These three features were noted by the Law Commission in its report (The Electronic Communications Code Law Com Report 336 paras 1.9 to 1.11). Both in its consultation paper and in its final report the Law Commission took the view that reform could not be achieved simply by amendment. Instead, it took the view that:

“… the advantages of this review will only be felt if the revised Code is drafted from a “clean sheet of paper”; there is no point in merely amending the 2003 Code.”

It was part of the government's strategy to achieve widespread coverage of the country by imposing obligations on operators by way of licence conditions. The government also intended to reform the electronic communications code to help operators to extend their networks, to make mast-sharing easier and infrastructure deployment and maintenance cheaper. Following the Law Commission's report, the code now in force was introduced by the Digital Economy Act 2017, which inserted section 106 and Schedule 3A to the Communications Act 2003.

I can take the facts from the UT's careful decision.

The facts

On the edge of an arable field in the Vale of White Horse, next to a cutting on the main Didcot to Swindon railway line, a telecommunications mast stands on a concrete base in a fenced compound. The mast is 15 metres high and supports two large panel antennae and two microwave dishes, with ancillary apparatus housed in three metal cabins at the foot of the structure. The mast and the apparatus on it belong to Vodafone Ltd which was granted a lease of the site in 2004 for a term of 10 years. The lease did not demise any part of the land itself; but granted Vodafone the right to install and use the mast and ancillary apparatus, together with rights of access to it. The lease excluded security of tenure under Part II of the Landlord and Tenant Act 1954. At the date of that lease the relevant code in force was that contained in Schedule 2 to the Telecommunications Act 1984.

Vodafone shares the use of the mast with Telefonica UK Ltd. Both companies provide separate 2G, 3G and 4G services to the surrounding area and in particular to the railway line.

The appellant, Cornerstone Telecommunications Infrastructure Ltd (“Cornerstone”), is a joint venture formed by Vodafone and Telefonica (which are independent and unconnected companies) to own and manage a combined portfolio of telecommunications sites contributed by each of them. Each company owns half of the shares in Cornerstone and their intention is that each shall continue to provide their own separate services using infrastructure provided to them by Cornerstone.

The freehold owner of the site is Compton Beauchamp Estates Ltd (“Compton”). It is part of Compton's Galleyherns Farm. Galleyherns Farm comprises about 188 acres and is within a much larger estate of about 10,000 acres also owned by Compton.

Since the expiry of the lease, Vodafone's apparatus has remained on site. Under paragraph 21 of the code contained in the 1984 Act Compton was not entitled to enforce the removal of Vodafone's apparatus except in accordance with a court order. Pending enforcement, the keeping of the apparatus on the land is deemed to be lawful: paragraph 21 (9).

The basic statutory framework

The Code deals with the acquisition, exercise and termination of “code rights”. “Code rights” are defined in paragraph 3 of the Code. They include the right for the statutory purposes to install electronic communications apparatus on, under or over the land; to keep it installed; to inspect, maintain, adjust, alter, repair, upgrade or operate it; to carry out works on the land in connection with those activities; to enter the land; to connect to a power supply; to interfere with or obstruct a means of access to or from the land; and to lop or cut back, or require another person to lop or cut back, any tree or other vegetation that may interfere with such apparatus.

Cornerstone, Vodafone and Telefonica are all “operators” for the purposes of the Code.

There are two methods by which an operator may acquire code rights. The first is by agreement. The second is by order of the UT (see Electronic Communications Code (Jurisdiction) Regulations 2017).

Part 2 of the Code deals with the conferral of code rights and their exercise. Part 4 of the Code deals with the power of the court (or in practice the UT) to impose an agreement. It is convenient to begin with Part 2.

Paragraph 9 of the Code provides:

“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.”

Paragraph 105 of the Code elaborates on the meaning of “occupier”. It provides, so far as relevant:

“(1) References in this code to an occupier of land are to the occupier of the land for the time being.

…

(5) Sub-paragraph (6) applies in relation to land which—

(a) is unoccupied, and

(b) is not a street in England and Wales or Northern Ireland or a road in Scotland.

(6) References in this code to an occupier of land, in relation to land within sub-paragraph (5), are to—

(a) the person (if any) who for the time being exercises powers of management or control over the land, or

(b) if there is no person within paragraph (a), to every person whose interest in the land would be prejudicially affected by the exercise of a code right in relation to the land.”

If an occupier confers code rights on an operator, paragraph 10 of the code explains who else may be bound by that right. It provides:

“(1) This paragraph applies if, in accordance with this Part, a code right is conferred on an operator in respect of land by a person (“O”) who is the occupier of the land when the code right is conferred.

(2) If O has an interest in the land when the code right is conferred, the code right also binds—

(a) the successors in title to that interest,

(b) a person with an interest in the land that is created after the right is conferred and is derived (directly or indirectly) out of—

(i) O's interest, or

(ii) the interest of a successor in title to O's interest, and

(c) any other person at any time in occupation of the land whose right to occupation was granted by—

(i) O, at a time when O was bound by the code right, or

(ii) a person within paragraph (a) or (b).

(3) A successor in title who is bound by a code right by virtue of sub-paragraph (2)(a) is to be treated as a party to the agreement by which O conferred the right.

(4) The code right also binds any other person with an interest in the land who has agreed to be bound by it.”

Paragraph 20 of the Code, which is in Part 4, provides:

“(1) This paragraph applies where the operator requires a person (a “relevant person”) to agree—

(a) to confer a code right on the operator, or

(b) to be otherwise bound by a code right which is exercisable by the operator.

(2) The operator may give the relevant person a notice in writing—

(a) setting out the code right, and all of the other terms of the agreement that the operator seeks, and

(b) stating that the operator seeks the person's agreement to those terms.

(3) The operator may apply to the court for an order under this paragraph if—

(a) the relevant person does not, before the end of 28 days beginning with the day on which the notice is given, agree to confer or be otherwise bound by the code right, or

(b) at any time after the notice is given, the relevant person gives notice in writing to the operator that the person does not agree to confer or be otherwise bound by the code right.

(4) An order under this paragraph is one which imposes on the operator and the relevant person an agreement between them which—

(a) confers the code right on the operator, or

(b) provides for the code right to bind the relevant person.”

Paragraph 22 provides:

“An agreement imposed by an order under paragraph 20 takes effect for all purposes of this code as an agreement under Part 2 of this code between the operator...