Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18

Three appeals concerning the Electronic Communications Code and whether operators with existing apparatus on sites could apply for new code rights. The Supreme Court held that an operator with apparatus installed is not automatically the 'occupier' for purposes of paragraph 9, allowing applications for additional code rights under Part 4.

Facts

These consolidated appeals concerned the operation of the Electronic Communications Code (Schedule 3A to the Communications Act 2003), which governs how telecommunications operators can acquire rights to install and maintain electronic communications apparatus (ECA) on land. The appeals arose from three separate disputes involving operators seeking new or additional code rights over sites where their equipment was already installed.

In the Compton Beauchamp appeal, Cornerstone sought rights over a site at Galleyherns Farm where Vodafone had previously installed apparatus under an expired lease. In the Ashloch appeal, Cornerstone had taken an assignment of Vodafone’s continuation tenancy protected under Part 2 of the Landlord and Tenant Act 1954 at Windsor House, Birmingham. In the On Tower appeal, On Tower remained on a site at Queens Oak Farm after its contracted-out leases had expired.

Issues

The central issue was the interpretation of paragraph 9 of the Code, which provides that code rights may only be conferred by an agreement between the occupier of the land and the operator. The Court of Appeal had held that where an operator has installed ECA on a site, it becomes the occupier, preventing it from applying for new code rights under Part 4 because a person cannot contract with itself.

Specific Questions

• Whether an operator with ECA installed on land is necessarily the ‘occupier’ for the purposes of paragraph 9
• Whether Part 4 applications were available to operators already on site
• The interrelationship between the Code, the transitional provisions, and the Landlord and Tenant Act 1954

Judgment

Lady Rose (with whom Lord Hodge, Lord Sales, Lord Leggatt and Lord Burrows agreed) delivered the judgment. The Supreme Court held that the Court of Appeal had erred in its interpretation of paragraph 9.

Lady Rose emphasised the purposive approach to statutory interpretation:

The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word ‘occupier’ so as best to achieve that goal.

The Court held that where an operator requests or applies for code rights under paragraph 20, it is not to be regarded as the occupier of the site merely because it has ECA installed there. Lady Rose stated:

I would hold therefore that para 20 can only be used to impose additional code rights and not to impose a modification of the rights already conferred in an existing Part 2 agreement or in a code agreement to which Part 5 applies.

The Court identified several policy reasons supporting this interpretation, including the need for flexibility in a fast-moving technological sector, avoidance of arbitrary distinctions between operators, and prevention of wasteful workarounds.

Outcomes

On Tower’s appeal was allowed. The Compton Beauchamp appeal was dismissed because Vodafone (not Cornerstone) was the occupier, and Compton Beauchamp was therefore not the appropriate recipient of the notice. The Ashloch appeal required further submissions regarding whether Cornerstone was seeking genuinely new rights or attempting to bypass its 1954 Act renewal rights.

Implications

This judgment clarifies the operation of the Electronic Communications Code in important respects. It establishes that operators with existing apparatus can seek additional code rights under Part 4, though they cannot use Part 4 to modify existing agreements before Part 5 becomes available. The decision supports the Government’s policy objective of facilitating the swift rollout of digital communications infrastructure whilst maintaining appropriate protections for landowners. The distinction between seeking new code rights (permitted under Part 4) and modifying existing rights (requiring Part 5) provides a framework for managing disputes between operators and site providers.

Verdict: On Tower’s appeal was allowed. Cornerstone’s appeal in Compton Beauchamp was dismissed. The outcome of Cornerstone’s appeal in Ashloch awaited further submissions from the parties.

Source: Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18