Cornerstone Telecommunications Infrastructure v Ashloch Ltd & Anor (Rev 2)

Under Part 4 of the Electronic Communications Code, a code right may be conferred only by the occupier of the land. An operator cannot ordinarily confer a right on itself merely because it occupies under a lease. The transitional provisions do not enlarge Part 4 or retrospectively displace a subsisting agreement.

Where an operator holds a pre-Code lease protected by Part II of the Landlord and Tenant Act 1954, it must pursue renewal under that Act rather than impose a new Code agreement under paragraph 20. Paragraph 40(8) does not expand paragraph 20. The limited exceptions in paragraphs 26 and 27 did not apply.

Cornerstone was the assignee of a pre-Code lease of part of a building roof. The lease was protected by Part II of the Landlord and Tenant Act 1954 and continued after its contractual expiry under section 24(1).

Cornerstone served notice under paragraph 20 of the Electronic Communications Code seeking a new agreement conferring Code rights. The Upper Tribunal held that it lacked jurisdiction because the reversioner was not the occupier and Cornerstone could not confer rights on itself. The appeal concerned whether Part 4 nevertheless applied to an existing protected tenancy.

1. The appeal was dismissed. The Upper Tribunal had correctly concluded that Cornerstone could not obtain a Code agreement under paragraph 20 in the circumstances.
2. Paragraph 9 establishes the governing principle that a code right may be conferred only by an agreement between the occupier and the operator. An operator that is itself the occupier cannot confer a right on itself. The decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 remained binding on this constitution of the court.
3. Paragraphs 26 and 27 are limited exceptions to that principle. Following Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075, an application under paragraph 26 need not be accompanied by an application for full rights under paragraph 20, whereas paragraph 27 is linked to paragraph 20. Those exceptions did not assist Cornerstone.
4. The question who is the occupier is primarily one of fact, involving physical presence on and control of the land, rather than legal status. An operator holding under a lease may be the occupier. A reversioner without physical presence or control cannot confer rights while the tenant retains exclusive possession. The existing findings established Cornerstone’s occupation but did not establish APW’s occupation.
5. The transitional provisions did not exclude Part 4, but neither did they extend its scope. Their purpose was to provide continuity while protecting legitimate expectations and avoiding retrospective interference with existing bargains. A protected subsisting lease was excluded from Part 5 and had to be renewed under Part II of the Landlord and Tenant Act 1954. A direct Part 4 application would create conflict with that scheme and bypass the restrictions in paragraph 33.
6. Paragraph 40(8) merely prevents a removal order being made while a paragraph 20 application concerning apparatus remains undetermined. It does not authorise an application which paragraph 20 otherwise excludes. The old code likewise did not establish an unrestricted right of renewal. Lord Justice Arnold and Lord Justice Davis agreed with Lord Justice Lewison’s reasoning.

• Court of Appeal (Civil Division) The appeal from the Upper Tribunal was dismissed on 29 January 2021.
• Upper Tribunal (Lands Chamber) In [2019] UKUT 338 (LC), the Tribunal determined that it lacked jurisdiction to impose a Code agreement where a subsisting protected tenancy existed.