Communications Act 2003, Schedule 3A, paragraph 20

When can the court impose an agreement?

SCHEDULE 3A The electronic communications code

20 (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, [F1410 the land to which it relatesF1410] 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.

[F1411 (2A) The notice must also—

(a) contain information about the availability of alternative dispute resolution in the event that the operator and the relevant person are unable to reach agreement, and

(b) explain the possible consequences of refusing to engage in alternative dispute resolution.F1411]

(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.

[F1412 (5) Before applying for an order under this paragraph, the operator must, if it is reasonably practicable to do so, consider the use of one or more alternative dispute resolution procedures to reach agreement with the relevant person.

(6) The operator or the relevant person may at any time give the other a notice in writing stating that the operator or the relevant person (as the case may be) wishes to engage in alternative dispute resolution with the other in relation to the agreement sought by the operator.F1412]

Definitions used in Schedule 3A, paragraph 20 4

the operator

18 (1) This paragraph applies where, immediately before the abolition of licensing, a person holding a licence under section 7 of the 1984 Act (“the operator”) —

(a) is a person to whom the telecommunications code applies in respect of the running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

Defined in Sch.18 para.18(1) · see it in the full Act
relevant person

(7) In sub-paragraph (6)(a) “relevant person”, in relation to land to which section 90B(5) of the Scotland Act 1998 applies, means the person having the management of that land.

Defined in Sch.3A para.104(7) · see it in the full Act
land

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Defined in Sch.4 para.5(8) · see it in the full Act
information

“information” includes accounts, estimates and projections and any document;

Defined in s.405(1) · see it in the full Act

Cases considering Schedule 3A, paragraph 20 16

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Interprets

An operator already on site may invoke the paragraph to obtain genuinely additional code rights. It cannot use the procedure to modify existing rights, improve agreed terms or bypass the applicable renewal regime. (see paras [130]-[135]; [159]; [169])

Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor

[2023] EWCA Civ 825 · 14 July 2023

Applies where an operator requires a person to agree to confer a code right or to be bound by one. Allows an operator to apply to the court for an order if agreement is not reached within 28 days. Defines an order under paragraph 20 as imposing an agreement between the operator and the relevant person.

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

[2021] EWCA Civ 90 · 29 January 2021Interprets

Paragraph 20 supplies the procedure for seeking compulsory agreement, but only where the relevant person can confer or be bound by the relevant Code right under the Code’s scheme. (see paras [28]-[31], [47]-[57], [75]-[80]) The provision distinguishes seeking agreement to confer a right from seeking agreement to be bound by an existing right. (see paras [28]-[31]) An application to confer a Code right is directed to the occupier as the relevant person. (see paras [28]-[31]) An application may seek to make another person bound by a Code right already conferred by the occupier. (see paras [28]-[31]) The notice must set out the Code right and other sought terms and seek agreement to them. (see para [28]) The operator may apply only after the relevant person has failed to agree within the statutory period or has expressly refused agreement. (see para [28]) The 28-day failure-to-agree condition is part of the procedural gateway to a paragraph 20 application. (see para [28]) An express written refusal also permits a paragraph 20 application. (see para [28]) An order imposes an agreement conferring the right or making the relevant person bound by it. The provision operates within, rather than enlarges, the conferral scheme. (see paras [28]-[31], [57])

What each judgment says about Schedule 3A, paragraph 20 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F1410Words in Sch. 3A para. 20(2)(a) inserted (15.3.2021 for specified purposes, 26.12.2022 for E.W. in so far as not already in force, 1.7.2023 for S. in so far as not already in force) by Telecommunications Infrastructure (Leasehold Property) Act 2021 (c. 7), s. 3(3)(b)(4), Sch. para. 4(5); S.I. 2022/1308, reg. 3(c)
  2. F1411Sch. 3A para. 20(2A) inserted (7.11.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 69(2)(a), 79(2); S.I. 2023/1022, reg. 2(b)
  3. F1412Sch. 3A para. 20(5)(6) inserted (7.11.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 69(2)(b), 79(2); S.I. 2023/1022, reg. 2(b)