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Communications Breakdown

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The government and main political parties each recognise the need to provide the UK with world class digital connectivity – to increase our competitiveness, boost productivity and meet future demands of consumers and businesses in both mobile and fixed connectivity. The new Electronic Communications Code was introduced in late 2017, to provide a framework to make it easier for network operators to install and maintain apparatus such as phone masts, exchanges and cabinets on public and private land.

However, recent case law highlights some relevant points of interest and potential impact for Landowners and Managing Agents (who are managing the Land on behalf of Landowners). The case of Cornerstone Telecommunications Infrastructure Ltd (Cornerstone) v Compton Beauchamp Estates Ltd (Compton) [2019] at the Court of Appeal, was a success for landowners who have mast(s) or any other telecommunications apparatus on their land.

The case dealt specifically with whether the Tribunal could compel a freeholder to confer rights on an operator where they were not in "physical occupation" of the Land. The Court of Appeal that held the tribunal had no jurisdiction to do so. In reaching its decision, it specifically considered who was an "occupier" for the purposes of the Electronic Communication Code (Code). It determined that an occupier was anybody in "physical occupation" of the land. However, if the operator did have an agreement with the physical occupier then the Tribunal may have been able to compel a freeholder to confer rights under the Code.

The case illustrated that Telecoms giant Vodafone were already in occupation of the land, although their tenancy had expired and they were currently in occupation under a “tenancy at will" – typically where a landlord and a tenant agree that a tenant will be allowed to occupy a property before a lease has been issued.

They shared occupation of the Land with Telefonica UK Ltd. The appellant in the case was Cornerstone Telecommunications Infrastructure Limited (Cornerstone), which was a joint venture between the two companies in occupation of the Land. Compton was the freeholder of the land. Cornerstone wanted to compel the rights under the Code on Compton - and served Notice only on Compton and not on Vodafone. Cornerstone had not requested Compton to agree to be bound by a code right already granted. At no point did Cornerstone state that Vodafone should be a party to the agreement.

The appeal was dismissed and The Court of Appeal made it clear that Cornerstone should have reached an agreement with Vodafone (the occupier) and if no agreement could be reached then the Upper Tribunal could resolve them.

Whilst there is no Bill at present proceeding through Parliament (at the time of writing), the government is keen to ensure that there are no delays to ensuring broadband and telecoms operators secure connections without delay. They have previously laid the Telecommunications Infrastructure (Leasehold Property) Bill before Parliament which is currently not proceeding; however, it appears inevitable that there will be legislation giving operators rights of entry as well as further installation rights to ensure their future plans for broadband are met.

In conclusion, where an operator is applying pressure for the freeholder to confer rights under the Code it may be extremely advantageous to them not to reach an agreement with an operator (regarding rights over their land for telecommunication apparatus), where a third party is already in occupation. It is imperative that they seek legal advice should they be approached by an operator for rights over their land for telecommunications apparatus.

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