23
(1)
An order under paragraph 20 may impose an agreement which gives effect to the code right sought by the operator with such modifications as the court thinks appropriate.
(2)
An order under paragraph 20 must require the agreement to contain such terms as the court thinks appropriate, subject to sub-paragraphs (3) to (8).
(2A)
In determining the terms of the agreement the court may take into account, among other things, any breach by the operator of an agreement between the operator and the relevant person which was imposed by an order under Part 4A (whether or not in force).
(3)
The terms of the agreement must include terms as to the payment of consideration by the operator to the relevant person for the relevant person's agreement to confer or be bound by the code right (as the case may be).
(4)
Paragraph 24 makes provision about the determination of consideration under sub-paragraph (3).
(5)
The terms of the agreement must include the terms the court thinks appropriate for ensuring that the least possible loss and damage is caused by the exercise of the code right to persons who—
(a)
occupy the land in question,
(b)
own interests in that land, or
(c)
are from time to time on that land.
(6)
Sub-paragraph (5) applies in relation to a person regardless of whether the person is a party to the agreement.
(7)
The terms of the agreement must include terms specifying for how long the code right conferred by the agreement is exercisable.
(8)
The court must determine whether the terms of the agreement should include a term—
(a)
permitting termination of the agreement (and, if so, in what circumstances);
(b)
enabling the relevant person to require the operator to reposition or temporarily to remove the electronic communications equipment to which the agreement relates (and, if so, in what circumstances).
Cases considering Schedule 3A, paragraph 23 9
[2019] EWCA Civ 2075 · 26 November 2019Interprets
Paragraph 23 governs the terms of an imposed agreement. Its application through paragraph 26 supported the Upper Tribunal’s ability to regulate duration, access conditions, consideration and loss or damage. (see paras [14], [68], [74]-[80])
Paragraph 23(1) gives the Upper Tribunal power to modify proposed agreement terms. It formed part of the framework for regulating an interim agreement. (see paras [14], [74]-[75])
Paragraph 23(3)’s duty to include consideration terms becomes a power under paragraph 26(6)(b). That feature did not confine paragraph 26 to cases pending a paragraph 20 determination. (see paras [14], [75])
Paragraph 23(4) concerns terms for payment of consideration. Its application through paragraph 26 supported the view that interim consideration could be addressed without a permanent-right application. (see paras [14], [75])
The agreement must contain terms securing the least possible loss and damage from exercise of the code right. The court used this objective to reject a construction favouring intrusive works over a less inconvenient MSV. (see paras [14], [48])
An imposed agreement must specify how long a code right is exercisable. Applied to paragraph 26, this requirement operates alongside paragraph 26(2), which defines interim duration by a specified period or event. (see paras [14], [68])
[2025] UKUT 136 (LC) · 30 April 2025Limits
As modified for interim rights, paragraph 23(2) governs the discretion to include consideration. A term for substantive consideration is included only if the tribunal considers it appropriate. (see paras [22]; [40])
Paragraph 23(3) ordinarily requires an imposed Code agreement to contain consideration terms. The judgment contrasts that duty with the discretionary position for interim rights. (see paras [21]-[22]; [40])
[2024] UKUT 216 (LC) · 29 July 2024
Paragraph 23(2) requires a new lease to contain terms the Tribunal thinks appropriate, subject to stated minimum requirements. It supplied the general statutory basis for determining the disputed terms. (see para [8])
Paragraph 23(5) requires the lease terms to ensure the least possible loss and damage from exercise of code rights to occupiers and interest-holders. The Tribunal treated that direction as part of the balance when fixing the redevelopment break clause. (see paras [8]; [22])
What each judgment says about Schedule 3A, paragraph 23 is in the case-law panel in the full Act.