Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

Under the Electronic Communications Code, a new operator can obtain code rights only from the occupier for the time being. Occupation is a factual question. It requires physical presence on, and control of, the relevant land, assessed in its statutory context.

Part 4 permits the Upper Tribunal to compel an occupier to confer rights, or another person to be bound by rights already conferred by an occupier. It does not permit the Tribunal to compel a non-occupying freeholder to confer new rights while another operator occupies the site. Renewal or variation for an operator already in situ is principally governed by Part 5, which proceeds through the concept of a site provider.

Vodafone had apparatus within a fenced compound on land owned by Compton Beauchamp Estates Ltd. Its former lease had expired, but its apparatus remained lawfully in place under the earlier statutory regime. Vodafone was accepted before the Upper Tribunal to be in occupation of the site.

Cornerstone, a joint venture of Vodafone and Telefonica, served a notice seeking an agreement under paragraph 20 of the Electronic Communications Code by which Compton alone would confer code rights on it. It neither sought an agreement with Vodafone nor asked that Vodafone be party to the proposed agreement.

The Upper Tribunal (Lands Chamber) held that it lacked jurisdiction to impose the requested agreement: [2019] UKUT 0107 (LC). Cornerstone appealed on a point of law, contending that Compton could be required to confer rights despite Vodafone’s occupation.

1. Appeal dismissed unanimously. The Upper Tribunal was correct to hold that it had no jurisdiction to impose the agreement sought by Cornerstone.

2. Paragraph 9 of the Code establishes the fundamental rule that code rights may be conferred only by agreement between the operator and the occupier of the land. Paragraph 20 does not displace that rule. Its reference to a “relevant person” accommodates two distinct orders: an order compelling an occupier to confer rights, and an order requiring another person to be bound by rights previously conferred by an occupier.

3. An occupier need not have a proprietary interest. The Code nonetheless makes the consequences of a grant by a non-proprietary occupier limited. Under paragraph 10, such a grant binds the occupier and persons who agree to be bound. An operator wishing to bind a person with an interest in the land must use the paragraph 10 and paragraph 20 machinery.

4. For this Code, occupation is a question of fact, not legal status. It means physical presence on and control of land, assessed in light of the nature and use of the land. Vodafone’s apparatus within the fenced compound, together with the agreed facts, established its occupation. Compton was not also an occupier merely because it owned the freehold or might in due course seek removal of the apparatus.

5. Where an operator is already in situ and seeks renewal or variation, Part 5 is the principal regime. It permits a notice to, and a new agreement with, a site provider, who may have ceased to be the occupier. Interim and temporary rights do not alter the basic rule: the statutory deeming provisions treat the relevant agreement as one made with the occupier for Code purposes.

6. Cornerstone’s further factual contentions had not been advanced below and were not open on an appeal confined to a point of law. Its unchallenged case-management position could not be recast on appeal. The practical course was first to obtain rights from Vodafone as occupier and then seek Compton’s agreement, or an order, that Compton be bound.

• Court of Appeal (Civil Division) — dismissed Cornerstone’s appeal and upheld the conclusion that the Upper Tribunal lacked jurisdiction to impose the requested agreement.
• Upper Tribunal (Lands Chamber) — held that a non-occupying freeholder could not be compelled to confer new code rights while Vodafone was the occupier: [2019] UKUT 0107 (LC).