Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

An electronic communications operator seeking new code rights is not treated as the occupier under paragraph 9 of the Electronic Communications Code merely because its apparatus is already installed on the site. It may obtain additional rights by agreement or under paragraph 20.

Paragraph 20 cannot be used to modify existing rights or improve the terms, price or duration of an existing agreement. Modification must await Part 5, unless consensually agreed under paragraph 11. The occupation of a different operator remains relevant, and rights must be sought from that occupier. An operator entitled to renew a protected business tenancy cannot use Part 4 to bypass the statutory renewal regime.

Three appeals concerned operators with electronic communications apparatus already installed on land. The common issue was whether the operators' occupation prevented the Upper Tribunal from imposing agreements conferring new rights under Part 4 of the Electronic Communications Code in Schedule 3A to the Communications Act 2003.

• In the Compton Beauchamp appeal, the Court of Appeal held in [2019] EWCA Civ 1755 that Vodafone, rather than the landowner, occupied the site.
• In the Ashloch appeal, the Court of Appeal held in [2021] EWCA Civ 90 that an operator holding a protected continuation tenancy could not proceed under paragraph 20.
• In the On Tower appeal, the Upper Tribunal followed those decisions in [2020] UKUT 195 (LC), although the operator occupied under an unwritten tenancy at will and had no subsisting agreement under the transitional provisions.

The central question was how “occupier” in paragraph 9 should be construed within the Code's scheme.

1. Disposition. Lady Rose, with whom Lord Hodge, Lord Sales, Lord Leggatt and Lord Burrows agreed, held that On Tower's appeal should be allowed and Cornerstone's Compton Beauchamp appeal dismissed. The disposition of the Ashloch appeal awaited further submissions.

2. The meaning of “occupier” depends on the statutory context and purpose. The Code is founded on agreements between distinct persons. Accordingly, when an operator seeks rights under paragraph 20, its own occupation is disregarded for paragraph 9 if that occupation results from apparatus installed pursuant to previously conferred code rights. Treating installation as an absolute bar would frustrate technological development, encourage unnecessary “future proofing”, generate arbitrary differences between sites and create wasteful workarounds.

3. An operator on site may agree new code rights with the occupier or seek an order under paragraph 20 imposing a new agreement. Paragraphs 26 and 27 confirm this construction because they contemplate applications concerning apparatus already installed. Their deeming provisions do not otherwise solve the problem created by treating the operator as the occupier.

4. Part 4 permits the conferral of additional code rights. It does not permit modification of rights already conferred, nor the reopening of price, duration or other terms. Existing agreements may be varied consensually under paragraph 11. Once rights continue under paragraph 30(2), Part 5 provides the exclusive compulsory procedure for their continuation or modification. The tribunal should reject a paragraph 20 application which disguises an attempted modification or repeats a failed Part 5 application.

5. Only the occupation of the applicant operator is disregarded. In Compton Beauchamp, Vodafone was a different operator and remained the occupier. The landowner could not confer the rights sought by Cornerstone, so that appeal failed.

6. On Tower was not barred by its occupation and the Upper Tribunal had jurisdiction to determine its paragraph 20 application. In Ashloch, Cornerstone had to use Part 2 of the Landlord and Tenant Act 1954 to renew its protected tenancy. It could seek genuinely additional code rights under Part 4, but could not use that route to bypass tenancy renewal or modify existing rights. Further submissions were required on the character of the rights claimed.

• United Kingdom Supreme Court: In [2022] UKSC 18, allowed On Tower's appeal, dismissed Cornerstone's Compton Beauchamp appeal, and invited further submissions concerning the Ashloch appeal.
• Court of Appeal — Ashloch: In [2021] EWCA Civ 90, upheld the conclusion that an operator occupying under a protected tenancy could not invoke paragraph 20 to replace or modify its rights.
• Court of Appeal — Compton Beauchamp: In [2019] EWCA Civ 1755, upheld the absence of jurisdiction because Vodafone occupied the site, while also treating occupation by a sitting applicant operator as a general obstacle.
• Upper Tribunal — On Tower: In [2020] UKUT 195 (LC), held that On Tower's unwritten tenancy at will was not a subsisting agreement and, following the Court of Appeal authorities, dismissed its paragraph 20 case for want of jurisdiction.
• Upper Tribunal — Compton Beauchamp: In [2019] UKUT 107 (LC), held that Vodafone, rather than Compton Beauchamp, occupied the site and that the Tribunal could not compel Compton Beauchamp to confer the rights sought.