Life after Compton
This article sets out the practical implications of the Supreme Court’s decision in Compton[1]
THE POSITION PRIOR TO THE RECENT DECISION
The courts decided that operators in situ could not obtain new rights in-term nor renew an agreement that had expired prior to the introduction of the Code[2] and which was not protected by the Landlord and Tenant Act 1954 (“the 1954 Act”)[3] because it was classed as the occupier.[4]
THE EFFECT OF THE SUPREME COURT’S RULING
Focussing on the purpose and structure of the Code, the Supreme Court reversed the previous decisions and determined that those operators in situ who seek code rights, are not the occupiers[5]. This has the following effects:
How the operator in situ obtains a new agreement where the parties cannot agree
The Supreme Court has confirmed that:
| Site Type | Effect of Decision |
| Agreement expired pre-Code and not protected by the 1954 Act | Operators can use para 20 of the Code to seek a new agreement[6] |
| Lease with 1954 Act protection | Operators can only renew their existing rights pursuant to the 1954 Act[7]* * see below however re obtaining additional code rights |
| Agreement expired post Code and not 1954 Act protected | Operators can only renew pursuant to Part 5 of the Code[8] |
How an operator in situ can obtain additional or modified rights where the parties cannot agree
The Supreme Court has also confirmed that:
| Site Type | Route to obtaining additional rights during the term of a current agreement | Route to modifying or varying existing code rights or terms |
| Prior to contractual expiry of the operator’s agreement (irrespective of whether the agreement is 1954 Act protected or not) | Part 4 of the Code[9]. | Not available through either the courts or the Tribunal[10] |
| Agreement which is holding over pursuant to the 1954 Act | Part 4 of the Code[11] | The 1954 Act.[12] |
| An agreement which has contractually expired but which is continuing pursuant to Part 5 of the Code | Part 5 of the Code only – Part 4 of the Code is not available.[13] | Part 5 of the Code only – Part 4 of the Code is not available.[14] |
COMMENTARY
We welcome the conclusion that the operator in situ who seeks new code rights can never be the occupier of land for the purposes of the Code. Any other finding would render obsolete important provisions of the Code.
Let’s hope for all those concerned that the market now settles down following this decision.
[1] Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited, Cornerstone Telecommunications Infrastructure Limited v Ashloch Limited and AP Wireless II (UK) Limited and On Tower UK Limited (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Limited [2022] UKSC 18
[2] The Electronic Communications Code as set out in Schedule 3A of the Communications Act 2003
[3] Nor continuing by tacit relocation
[4] under paragraph 9 of the Code.
[5] The Supreme Court’s decision per [117], [140] and [159]
[6] Ibid per [165]
[7] Ibid per [62(i)] and [168]
[8] Ibid per [62(iii)]
[9] Ibid per [130-131]
[10] Ibid per [128(ii)] and [130]
[11] Ibid per [169]
[12] Ibid per [169]
[13] Ibid per [128-130]
[14] Ibid per [128-130]