The Code: The story so far
With decisions coming out of the Tribunal increasingly regularly, there are key points arising from the cases that have been decided to date.
Elite Embroidery Limited v Virgin Media Limited
The new Code does not supplant the old Code where a claim relates to an agreement entered into before 28 December 2017. It was held in this case that “the repeal of the old Code is without prejudice to any accrued right to compensation under it”. The Tribunal did not have jurisdiction to deal with the claim for compensation as it should have been brought under the old Code.
CTIL v The University of London
- The right to access land for the purposes of undertaking preliminary surveys can be considered a ‘code right’.
- An operator may apply for the grant of an interim agreement under paragraph 26 of the Code without it being linked to an application for a full Code agreement. There is nothing to prevent stand-alone interim rights being granted.
EE Limited and Hutchison 3G UK Limited v The Mayor and Burgesses of the London Borough of Islington (1)
When an interim agreement is being imposed on an occupier of land the following points of principle should apply:
- it should not impose any obligations on the site provider other than an obligation not to derogate from the rights granted
- it should require no covenants or undertakings from the Landowner
- it should put the full risk of the carrying out of works etc. on the operators
EE Limited and Hutchison 3G UK Limited v The Mayor and Burgesses of the London Borough of Islington (2)
There are two elements when determining consideration under the Code: (1) The nominal value of the right to have apparatus on the land; and (2) The consideration due to the site provider in respect of the risks and obligations imposed.
In this instance the Tribunal ruled that £1000 would be an appropriate amount. This was in respect of a rooftop site in London.
CTIL v Compton Beauchamp Estates Limited
- When an operator is seeking code rights it must approach the person in physical occupation of the land. This may not necessarily be the freehold owner. If a telecoms site already exists, and the operator is seeking code rights in respect of that site, it should approach the current occupant of the site.
- When assessing the consideration payable for a greenfield site it is not sufficient to simply take the value of land in the area per square metre and apply it to the size of plot on which the site is situated. The risks and disadvantages that come with having a telecoms site on the land also need to be added into the mix. Valuation methods that may be useful are (1) looking at rents from agreements which can be shown to have been agreed with regard to the Code and (2) looking at rents from agreements granting similar rights which are not related to telecoms.
CTIL v Richard Gregory Keast
- Where an operator has given notice as per paragraph 20(2) of the Code, it is permitted to seek fewer rights before the Tribunal than were sought in the notice. Obviously though it cannot seek rights beyond what is set out in the notice.
- While code rights can only be granted over land, and electronic communications apparatus cannot be considered land under the Code, the presence of electronic communications apparatus on an area of land does not prevent code rights being granted in respect of all of that land – not just the spaces in between the apparatus.
- Paragraph 23 of the Code does not limit the ‘terms’ of an agreement that the Tribunal may impose on an occupier. It is likely to always be at the Tribunal’s discretion to grant or reject the terms sought by an operator under a draft agreement, as opposed to there being certain terms that it has no jurisdiction to impose.
Evolution (Shinfield) LLP v British Telecommunications PLC
Where under paragraph 38 of the Code the owner or occupier of neighbouring land seeks the removal of apparatus kept on other land on the grounds that it “interferes with or obstructs a means of access”, it must be an existing means of access. It is not sufficient that the apparatus interferes with or obstructs a potential means of access.
For more information on the above, please contact Graham Jones or you can give us a call on 0345 070 6000.
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