Communications Act 2003, Schedule 3A, paragraph 34

What orders may a court make on an application under paragraph 32 or 33?

SCHEDULE 3A The electronic communications code

34 (1) This paragraph sets out the orders that the court may make on an application under paragraph 32(1)(b) or 33(5).

(2) The court may order that the operator may continue to exercise the existing code right in accordance with the existing code agreement for such period as may be specified in the order (so that the code agreement has effect accordingly).

(3) The court may order the modification of the terms of the code agreement relating to the existing code right.

(4) Where under the code agreement more than one code right is conferred by or otherwise binds the site provider, the court may order the modification of the terms of the code agreement so that it no longer provides for an existing code right to be conferred by or otherwise bind the site provider.

(5) The court may order the terms of the code agreement relating to the existing code right to be modified so that—

(a) it confers an additional code right on the operator, or

(b) it provides that the site provider is otherwise bound by an additional code right.

(6) The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

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

(b) provides for a code right to bind the site provider.

(7) The existing code agreement continues until the new agreement takes effect.

(8) This code applies to the new agreement as if it were an agreement under Part 2 of this code.

(9) The terms conferring or providing for an additional code right under sub-paragraph (5), and the terms of a new agreement under sub-paragraph (6), are to be such as are agreed between the operator and the site provider.

(10) If the operator and the site provider are unable to agree on the terms, the court must on an application by either party make an order specifying those terms.

(11) Paragraphs 23(2) to (8), 24, 25 and 84 apply—

(a) to an order under sub-paragraph (3), (4) or (5), so far as it modifies or specifies the terms of the agreement, and

(b) to an order under sub-paragraph (10)

as they apply to an order under paragraph 20.

(12) In the case of an order under sub-paragraph (10) the court must also have regard to the terms of the existing code agreement.

(13) In determining which order to make under this paragraph, the court must have regard to all the circumstances of the case, and in particular to—

(a) the operator's business and technical needs,

(b) the use that the site provider is making of the land to which the existing code agreement relates,

(c) any duties imposed on the site provider by an enactment, and

(d) the amount of consideration payable by the operator to the site provider under the existing code agreement.

(14) Where the court makes an order under this paragraph, it may also order the operator to pay the site provider the amount (if any) by which A exceeds B, where—

(a) A is the amount of consideration that would have been payable by the operator to the site provider for the relevant period if that amount had been assessed on the same basis as the consideration payable as the result of the order, and

(b) B is the amount of consideration payable by the operator to the site provider for the relevant period.

(15) In sub-paragraph (14) the relevant period is the period (if any) that—

(a) begins on the date on which, apart from the operation of paragraph 30, the code right to which the existing code agreement relates would have ceased to be exercisable or to bind the site provider or from which, apart from that paragraph, the code agreement could have been brought to an end by the site provider, and

(b) ends on the date on which the order is made.

Definitions used in Schedule 3A, paragraph 34 7

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
code agreement

(5) An agreement to which this Part of this code applies is referred to in this code as a “code agreement”.

Defined in Sch.3A para.29(5) · see it in the full Act
modification

“modification” includes omissions, alterations and additions, and cognate expressions are to be construed accordingly;

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

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

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

“business” includes any trade or profession;

Defined in s.405(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
enactment

“enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;

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

Cases considering Schedule 3A, paragraph 34 11

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Limits

The paragraph empowers the tribunal to determine Part 5 disputes and impose modifications or new agreements after the original term. It cannot be bypassed through a disguised Part 4 application. (see paras [115]; [128]-[135])

On Tower UK Limited v AP Wireless II (UK) Limited

[2026] EWCA Civ 43 · 3 February 2026

The court referred to paragraph 34 as setting out the orders available on applications under paragraphs 32 and 33, including modification, continuation and replacement of a code agreement. Those powers supported treating the current operator as the relevant party. (see paras [18]; [46]-[48]; [63]-[64]) The court noted that paragraph 34(13) requires regard to all the circumstances, including the operator’s business and technical needs, the site provider’s land use, statutory duties and consideration. It supported focusing on the current operator’s needs. (see paras [18]; [48])

Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor

[2023] EWCA Civ 825 · 14 July 2023

Completes the provision governing terms of a replacement agreement ordered under paragraph 34. Allows the court to terminate the existing code agreement and order the parties to enter a new agreement conferring or binding code rights. Keeps the existing code agreement in force until the replacement agreement takes effect. Provides that the terms of a new agreement are those agreed by the operator and site provider or specified by the court if they cannot agree.

What each judgment says about Schedule 3A, paragraph 34 is in the case-law panel in the full Act.