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A black hole in the telecoms code: operators occupying under old agreements left without any protection

The Upper Tribunal has, reluctantly it is fair to say, found that telecoms operators in situ under agreements granted under the old Code but which expired before the new Code came into force have no Code protection and are unable to apply for fresh Code rights. This leaves a landowner free to serve a removal notice on the operator and gives the operator no option other than to leave. There is no requirement on the landowner to prove redevelopment; no lengthy notice periods; and in this case, no 1954 Act rights for the operator either.

The “new” Electronic Communications Code came into force on 28 December 2017. Part 4 of the Code gives approved operators rights to install and maintain their apparatus on private land and the new Code is particularly favourable to operators in terms of the rents they pay for such rights. The new Code was not retrospective and repealed the “old” Code, whilst containing transitional provisions for subsisting agreements. A subsisting agreement is one which was granted under the old Code and was “in force” between the operator and the relevant person when the new Code came into force in December 2017. The termination and removal provisions under the new Code provide protection for these subsisting agreements, so that a landowner can only terminate on one of four statutory grounds, including redevelopment. Once the agreement has been terminated, removal of the apparatus is the second stage in the process, meaning it can be lengthy to obtain possession from an operator.

In this case, Arqiva occupied the site under a lease which had been contracted out of the 1954 Act and which had expired in October 2016. It remained in occupation of the site post expiry and was, at that time, protected from the landowner seeking removal of the apparatus. Whilst the old Code did not have the effect of continuing Code rights granted under the lease, the landowner essentially needed the permission of the court to require removal of the apparatus and the operator remained entitled to request fresh Code rights through the courts.

The Tribunal found that Arqiva was occupying the site under an implied tenancy at will, which falls outside of the protection of the transitional provisions of the Code. Further, it had no protection under the Landlord and Tenant Act 1954, as tenancies at will are expressly excluded.

As it did not have any Code rights, Arqiva sought to obtain fresh rights under Part 4 of the Code, including temporary rights to keep the existing apparatus in situ until the application for permanent rights was determined. The Tribunal was bound by the Court of Appeal’s recent interpretation of the Code in two cases and found that Arqiva was not entitled to do so.

The result is that the operator is effectively shut-out from any protection under the new Code. The Tribunal has indicated it will give permission to appeal, as the ramifications for operators in situ under expired agreements are huge. If the decision stands, it will entitle a landowner in this scenario to by-pass the termination procedures in the Code and serve a removal notice requiring the operator to agree within 28 days a reasonable period in which to vacate the site.

As many telecoms leases granted under the old Code were contracted out of the 1954 Act to avoid duplicate protection for the operator, this will come as quite a blow to operators in this scenario whilst being music to a landowner’s ears. The music has not stopped yet though … stay tuned for an update on the appeal.

Arqiva Services Ltd v AP Wireless II (UK) Ltd [2020] UKUT 195 (LC)