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Electronic Communications Code

The Electronic Communications Code (‘the Code’) confers rights designed to facilitate the installation and maintenance of electronic communication networks. Network providers and providers of infrastructure are empowered to install and maintain electronic communications apparatus (‘ECA’) on, under and over land pursuant to simplified planning procedures. If the land owner fails to enter into an agreement with the network provider or provider of ECA, the courts will impose an agreement.

Many issues pursuant to the Code have come before the courts but the case of Cornerstone Telecommunications Infrastructure Ltd v Ashlock Ltd and another is the first case to come before the Supreme Court. Ashlock and another had a tenancy of the roof of a property known as Windsor House. The tenancy was subject to a lease of part of the roof to Cornerstone. This sub-tenancy was protected by the Landlord and Tenant Act, 1954. Cornerstone, which had already installed apparatus on the site pursuant to its tenancy, asked the courts to impose terms of an agreement under the Code. The Upper Tribunal found it had no jurisdiction as Cornerstone was already in occupation of the land under the ’54 Act. The Court of Appeal dismissed Cornerstone’s appeal and the case went before the Supreme Court.

The main issue before the Court was whether the word ‘occupier’ under the Code includes an operator presently on the site as a result of having installed and operated ECA there. The Supreme Court held in judgement published on 22 June that Cornerstone could only ask the courts to modify existing rights in respect of the site but this does not prevent an operator from obtaining additional code rights.

Wilberforce Chambers comment “The judgment is a significant boost for operators and will make it much easier for them to secure the agreements required for the roll out of 5G services.”

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