Electronic Communications Code: temporary and tempered rights

Posted: 10/03/2020

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In Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2019] UKUT 338 (LC); [2020] EGLR 2, the Upper Tribunal (UT) provided some clarity for site providers hosting equipment owned by operators where there had previously been a fixed-term protected business tenancy.

But what about the scenario where the site provider is not bound by the code rights conferred? What options are available to operators to improve their position in such circumstances, and how might landowners look to respond?

Paragraph 27 of the Electronic Communications Code contains means by which an operator can acquire temporary rights under the code, and could be deployed in circumstances where an operator finds itself in a precarious spot, with no rights on which it might rely.

How the scenario might arise

The code is clear that only occupiers can confer rights (see paragraph 9) and need have no legal or other interest in the land. There are three different types of occupiers: those who are physically present; the relevant street or road manager; and where land is unoccupied, either the person who controls or manages the land, or where there is no such person, persons who would be prejudicially affected by the exercise of code rights over the land (paragraph 105). So rights can be granted without the landowner’s permission: licensees, or even squatters, can be occupiers. For landowners, the thought that a squatter or licensee is in a position to grant rights may be a sobering one.

However, the grant of rights by the holder of an inferior interest will not mean that the landowner, or a more senior interest holder (such as a head lessee), is bound. Once the landowner is back in possession (in whatever circumstances) so long as it has not agreed in writing to be bound by the agreement conferring rights on the operator, it will have a right to require removal of the equipment on notice. In such circumstances, the operator may look to use paragraph 27 to keep its equipment on the land in the short or medium term while new code rights are secured against the senior interest holder, now the occupier.

How are temporary rights obtained?

The process to obtain temporary rights is a two-stage one. First, the operator is required to serve notice using paragraph 20(2), and is required to specify that the person’s agreement is required, on a temporary basis, in respect of right(s) which are to be exercisable (either in whole or part) in relation to code equipment which is already installed on, under or over land. The second stage is reference to the UT. In considering any application, the UT will be required to have regard to the objective contained in paragraph 20(3).

When can temporary rights be sought?

Paragraph 27 is available so long as the operator is not, for the time being, required to remove the apparatus (paragraph 27(1)(c)), that is, where no paragraph 40 notice has been served, or where notice to remove has been served, but prior to any reference to the UT being determined. Presumably, the right to apply under paragraph 27 will remain open right up until the time for compliance with an order pursuant to paragraph 44 (which will require removal) arrives. It will therefore provide a stay of execution for operators. Further, because the UT has jurisdiction under paragraph 27(5) to make an order even where the 28-day period specified in paragraph 20(3) has not yet elapsed where there is urgency, an operator can secure an emergency remedy – subject to being able to get in front of the UT before the time when it is required to remove the equipment.

When and how will temporary rights come to an end?

Paragraph 27(2) indicates that temporary code rights will endure for the period ordered. This could be a six to twelve month period to allow a paragraph 20(2) application to be determined, but may be longer to allow time for planning permission, design and build in relation to any new (replacement) site. Paragraph 30(3) states that temporary code rights (together with interim rights under paragraph 26) are excluded from automatic continuation provided by paragraph 30(2). However, unlike in paragraph 26(7)-(8), there is no right to require removal in paragraph 27, which will arise once the agreement has expired. Accordingly, once the term has expired, the landowner must either secure a further order to bring temporary rights to an end (either as a consequential order revoking the paragraph 27 order in the paragraph 20 proceedings, if such an order can be obtained) or alternatively, by availing itself of the right to serve notice in paragraph 32(1) and proceeding via Part 5, which fits well with Ashloch.

Since the factors to be taken into account under the objective set out in paragraph 27(3) are limited to the effect on the operator’s network and proper adjustment/repair of the equipment, paragraph 27 is a powerful tool in negating, or at least tempering, the landowner’s ability to require removal, and is arguably open for deployment right up until execution.

Landowners intending to develop land hosting code-protected equipment should take heed: even a temporary delay could prove costly.

Th​is article was published ​in Estates Gazette in March 2020. 

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