Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Rose,Lord Hodge,Lord Sales,Lord Leggatt,Lord Burrows |
| Judgment Date | 22 June 2022 |
| Neutral Citation | [2022] UKSC 18 |
| Court | Supreme Court |
[2022] UKSC 18
Lord Hodge, Deputy President
Lord Sales
Lord Leggatt
Lord Burrows
Lady Rose
Supreme Court
Trinity Term
On appeals from: [2019] EWCA Civ 1755; [2021] EWCA Civ 90 and [2020] UKUT 0195 (Lands Chamber)
Appellant (Cornerstone Telecommunications Infrastructure Ltd)
John McGhee QC
Oliver Radley-Gardner QC (in Ashloch only)
Tricia Hemans (in Ashloch only)
James Tipler
(Instructed by Gowling WLG (UK) LLP (London))
Respondent [Compton Beauchamp Ltd]
Respondent (Ashloch Ltd)
Respondent/Intervener (AP Wireless II (UK) Ltd)
Christopher Pymont QC
Wayne Clark
Fern Schofield
(Instructed by Eversheds Sutherland (International) LLP (London))
Appellant (On Tower UK Ltd)
Jonathan Seitler QC
Justin Kitson
Kester Lees
(Instructed by Pinsent Masons LLP (Birmingham))
Heard on 1, 2 and 3 February 2022
( with whom Lord Hodge, Lord Sales, Lord Leggatt and Lord Burrows agree)
When the revised Electronic Communications Code with which these appeals are concerned was published in May 2016, the Minister of State for Culture and the Digital Economy described the roll out of digital communications infrastructure as vitally important to citizens across the UK, as digital communications become an ever more essential part of the economic and social fabric of this country. The new Code was, the Minister said, intended to “provide a robust platform to enable long-term investment and development of digital communications infrastructure in the 21st Century”: see the Foreword to the Government's consultation response “ A New Electronic Communications Code”.
Under early legislation dealing with the installation of telegraph infrastructure, the necessary apparatus could generally only be placed on land with consent of the landowner. It was recognised, however, that it was not desirable to leave the selection of sites and the negotiation between site owners and telecoms operators to market forces. Legislation was needed to enable the providers of telecoms services to compel landowners either to sell land to them or to grant them rights over land on which they could install the equipment needed to build a telecoms network.
A code was introduced as Schedule 2 to the Telecommunications Act 1984 empowering the courts to intervene to require an unwilling landowner to provide the site and setting the terms and conditions on which the operator would install and maintain the relevant electronic communications apparatus (“ECA”) there. That code had been introduced as part of the privatisation programme to open up the telecoms sector to competition by enabling competing operators to develop networks that would compete with and supplement the network that had been developed over many years by the monopoly provider. Schedule 2 to the Telecommunications Act 1984 was substantially amended by the Communications Act 2003 (“the 2003 Act”). I shall refer to that code as amended as “the old code”. It became clear that the drafting and operation of the old code was unsatisfactory and that it was generating problems that risked jeopardising the swift, economic roll out of new technologies as they arose in this fast moving sector.
In September 2011 the Minister asked the Law Commission to conduct an independent review of the old code. The Law Commission carried out an extensive consultation exercise. The consultation paper published in June 2012 described how electronic communication depends on a complex array of hardware including networks of masts, cables, wires, servers, routers and exchanges. The hardware sometimes has to be located on land that does not belong to those who own the equipment: “fibre optic cables pass under streets and cross fields; mobile phone transmitters cling to church steeples and shop-fronts; and telephone cabinets are familiar on our roadsides and pavements”.
The Law Commission published its Report The Electronic Communications Code (Law Com No 336) on 27 February 2013 (“the Law Commission Report”). The recommendations made in that Report were largely, though not wholly, accepted by the Government in replacing the old code. The current regime for sorting out when, where and on what terms, telecoms operators can acquire the right to install their ECA on a particular piece of land is that set out in the Electronic Communications Code which came into force on 28 December 2017 and which forms Schedule 3A to the 2003 Act (“the Code” or “the new Code”). It was inserted into the 2003 Act by the Digital Economy Act 2017 (“the 2017 Act”) and has effect by virtue of section 106 of the 2003 Act (also amended by the 2017 Act).
As well as inserting the new Code into the 2003 Act, the 2017 Act made provision for the transition of the existing arrangements which had been made under the old code and which needed to be carried forward under the new Code. These are set out in Schedule 2 to the 2017 Act (the “transitional provisions”).
The three appeals that are before the court concern how the Code works, particularly in combination with the transitional provisions. The main issue is whether and how an operator who has already installed ECA on a site can acquire new or better code rights from the site owner. At the heart of the three appeals is para 9 of the Code. This provides 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.”
The Court of Appeal has decided in two of the judgments under appeal that when the operator installs its equipment on the land, in many cases it will thereafter be the “occupier of the land” for the purpose of para 9. Since an operator who is an occupier cannot enter into an agreement with itself, this means that it is thereafter precluded from applying under the Code for new code rights. That makes sense, the Court of Appeal held, having regard to the overall structure of the Code because the aim of the Code is to ensure that parties to an agreement conferring code rights stick to the bargain they have made. There are other Parts of the Code they can use once their initial agreement has expired if they want to change that bargain, subject to meeting the conditions of those other Parts.
The appellants are all operators within the meaning of para 2 of the new Code, pursuant to directions made by Ofcom under the 2003 Act. They have installed ECA on land but their entitlement to keep it there is precarious. They want in effect to improve the nature of their rights by applying for rights under the Code. In this judgment where I refer to the counterparty to the agreement with the operator as “the site owner” or “landowner” that is not intended to indicate that that counterparty has any particular legal interest in the land. I refer to the operator who has ECA already installed on the site as the “operator on site”.
The new Code is a highly complex instrument of 108 paragraphs. I describe here only those provisions which are relevant to these appeals. There are many other paragraphs of the Code dealing with rights to install ECA over railways, canals and tramways, the right to fly lines over land and conferring rights to carry out street work. I have set out the main provisions with which we are concerned in an Annex to this judgment.
Part 1 of the Code introduces the key concepts. The term “operator” used in the Code means a person to whom the Code is applied by a direction of Ofcom under section 106 of the 2003 Act. Such a direction can only be made in respect of that person if the purpose of making it is so the person can either provide an electronic communications network (section 106(4)(a)) or provide a system of infrastructure which it makes available to network providers so that they can provide their networks (section 106(4)(b)). The major mobile phone companies include Vodafone Ltd and the Telefonica group who were formerly joint co-owners of Cornerstone Telecommunications Infrastructure Ltd (“Cornerstone”), one of the appellants in these appeals. Vodafone and Telefonica are operators pursuant to subsection (4)(a) of section 106 of the 2003 Act and Cornerstone is an operator pursuant to subsection (4)(b).
A “code right” is defined in para 3 of the new Code as a right to do certain things for the statutory purposes. Those purposes are set out in para 4 and are the purposes of providing the operator's network or providing an infrastructure system. Para 3 specifies nine groups of activities from (a) to (i) which can be the subject of a code right. Some of these sub-paragraphs themselves include many different activities, for example sub-paragraph (c) is “to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is on, under or over the land”, encompassing therein 21 different activities. Some of the activities are likely to be intrusive from the site owner's point of view, for example the right to obstruct a means of access to or from land (sub-paragraph (h)), and some less so, for example the right to connect to a power supply (sub-paragraph (g)) or to cut back a tree that interferes with ECA (sub-paragraph (i)).
“Electronic communications apparatus” is defined broadly in para 5 as any apparatus used in connection with the provision of the network, lines such as wires and cables, and structures, including buildings if their sole purpose is to enclose other ECA.
Part 2 of the Code deals with...
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