Communications Act 2003, Schedule 3A, paragraph 26

Interim code rights

SCHEDULE 3A The electronic communications code

26 (1) An operator may apply to the court for an order which imposes on the operator and a person, on an interim basis, an agreement between them which—

(a) confers a code right on the operator, or

(b) provides for a code right to bind that person.

[F1416 (1A) But an operator may not make an application under this paragraph if there is a relevant Part 4A agreement in effect between the operator and the person.

(1B) In sub-paragraph (1A) “relevant Part 4A agreement” means an agreement imposed by an order under Part 4A by which the person—

(a) confers a Part 4A code right on the operator, or

(b) otherwise agrees to be bound by a Part 4A code right which is exercisable by the operator,

where the Part 4A code right is in respect of the same land as the code right mentioned in sub-paragraph (1).F1416]

(2) An order under this paragraph imposes an agreement on the operator and a person on an interim basis if it provides for them to be bound by the agreement—

(a) for the period specified in the order, or

(b) until the occurrence of an event specified in the order.

(3) [F1417 Subject to paragraph 27ZA,F1417] the court may make an order under this paragraph if (and only if) the operator has given the person mentioned in sub-paragraph (1) a notice which complies with paragraph 20(2) stating that an agreement is sought on an interim basis and—

(a) the operator and that person have agreed to the making of the order and the terms of the agreement imposed by it, or

(b) the court thinks that there is a good arguable case that the test in paragraph 21 for the making of an order under paragraph 20 is met.

(4) Subject to sub-paragraphs (5) and (6), the following provisions apply in relation to an order under this paragraph and an agreement imposed by it as they apply in relation to an order under paragraph 20 and an agreement imposed by it—

(a) paragraph 20(3) (time at which operator may apply for agreement to be imposed);

(b) paragraph 22 (effect of agreement imposed under paragraph 20);

(c) paragraph 23 (terms of agreement imposed under paragraph 20);

(d) paragraph 24 (payment of consideration);

(e) paragraph 25 (payment of compensation);

(f) paragraph 84 (compensation where agreement imposed).

(5) The court may make an order under this paragraph even though the period mentioned in paragraph 20(3)(a) has not elapsed (and paragraph 20(3)(b) does not apply) if the court thinks that the order should be made as a matter of urgency.

(6) Paragraphs [F1418 20(3), 22,F1418] 23, 24 and 25 apply by virtue of sub-paragraph (4) as if—

(a) references to the relevant person were to the person mentioned in sub-paragraph (1) of this paragraph, and

(b) the duty in paragraph 23 to include terms as to the payment of consideration to that person in an agreement were a power to do so.

(7) Sub-paragraph (8) applies if—

(a) an order has been made under this paragraph imposing an agreement relating to a code right on an operator and a person in respect of any land, and

(b) the period specified under sub-paragraph (2)(a) has expired or, as the case may be, the event specified under sub-paragraph (2)(b) has occurred without (in either case) an agreement relating to the code right having been imposed on the person by order under paragraph 20.

(8) From the time when the period expires or the event occurs, that person has the right, subject to and in accordance with Part 6 of this code, to require the operator to remove any electronic communications apparatus placed on the land under the agreement imposed under this paragraph.

Definitions used in Schedule 3A, paragraph 26 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
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
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
electronic communications apparatus

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act

Cases considering Schedule 3A, paragraph 26 8

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Interprets

The interim-rights procedure contemplates a later paragraph 20 order after apparatus has been installed. Its deeming provision does not overcome a rule treating the installed operator as the occupier, so it supports the court's construction of paragraph 9. (see paras [142]-[148])

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

[2021] EWCA Civ 90 · 29 January 2021Interprets

Paragraph 26 provides a route for interim Code rights and is a limited exception to the occupier principle. University of London establishes that it need not be accompanied by a full paragraph 20 application. (see paras [32], [62]-[66]) The provision permits an interim order imposing an agreement conferring or binding a person by a Code right. (see para [32]) An interim order requires the relevant notice and either agreement or a good arguable case that the paragraph 21 test is met. (see para [32]) Agreement and terms may provide the basis for an interim order. (see para [32]) A good arguable case under the paragraph 21 test may provide the basis for an interim order. (see para [32]) Specified paragraph 20 and paragraph 22 provisions apply to interim agreements as they apply to agreements imposed under paragraph 20. (see para [32])

The University of London v Cornerstone Telecommunications Infrastructure Limited

[2019] EWCA Civ 2075 · 26 November 2019Limits

Paragraph 26 permits a free-standing interim application for a code right. The right may be limited by a specified period or event, and the application is governed by a good arguable case that the paragraph 21 test is met. (see paras [59]-[84]) Paragraph 26(2) defines an interim agreement by its duration: the parties are bound for a specified period or until a specified event. It does not require a pending paragraph 20 application or a final hearing. (see paras [68]-[69], [73]-[84]) Paragraph 26(3) requires notice complying with paragraph 20(2), stating that an interim agreement is sought, and a good arguable case that paragraph 21’s test is met unless the parties agree. It does not compel a paragraph 20 application. (see paras [70]-[73]) Paragraph 26(4) applies specified provisions, including paragraphs 23 to 25, to interim orders. This supports the Upper Tribunal’s ability to regulate terms, consideration and compensation for a free-standing interim right. (see paras [16], [74]-[75], [82]) Paragraph 26(4)(e) applies paragraph 25 to interim orders. The court relied on that cross-application to conclude that compensation for temporary rights can be addressed without paragraph 20 proceedings. (see paras [16], [82]) Paragraph 26(6)(b) changes the paragraph 23 duty to include consideration terms into a power for interim agreements. That feature did not confine paragraph 26 to cases pending paragraph 20 proceedings. (see paras [16], [75]) Paragraph 26(7) permits Part 6 consequences after an interim right ends without an agreement being imposed under paragraph 20. It does not require that a paragraph 20 application must have been made. (see paras [18], [78]) After an interim period expires or a specified event occurs without a paragraph 20 agreement, the person may require removal of apparatus under Part 6. This consequence supported the conclusion that paragraph 26 can operate without a permanent-right application. (see paras [16], [74], [78])

What each judgment says about Schedule 3A, paragraph 26 is in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F1416Sch. 3A para. 26(1A)(1B) 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(7)(a); S.I. 2022/1308, reg. 3(c)
  2. F1417Words in Sch. 3A para. 26(3) inserted (26.4.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 66(4), 79(2); S.I. 2023/469, reg. 2
  3. F1418Words in Sch. 3A para. 26(6) 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(7)(b); S.I. 2022/1308, reg. 3(c)

Modifications

  1. C86Sch. 3A para. 26 applied (with modifications) (E.W.) (11.8.2022) by The Sizewell C (Nuclear Generating Station) Order 2022 (S.I. 2022/853), art. 1, Sch. 18 para. 4(4) (with arts. 62, 76, 87)
  2. C87Sch. 3A para. 26 applied (with modifications) (13.11.2025) by The Stonestreet Green Solar Order 2025 (S.I. 2025/1175), art. 1, Sch. 12 para. 4(4) (with art. 40, Sch. 13)