Ruling gives MNOs license to upgrade
Willing infrastructure partners for UK mobile network operators may be thin on the ground in future, thanks to a new legal ruling but MNOs can now upgrade their equipment on existing sites unimpeded. The UK Supreme Court has today handed down judgment in three cases clarifying a number of points of ambiguity in the Electronic Communication Code of 2017 regarding the hosting of mobile phone towers. It’s not good news for infrastructure hosts which, ultimately, could make landowners less likely to co-operate with infrastructure builders. The legislation gave mobile network operators (MNOs) rights to keep equipment on land even after termination of contractual rights and even install new equipment.
The ruling is great news for mobile operators, according to Cornerstone Telecoms Infrastructure Limited (CTIL), which said the judgement “will allow operators to upgrade a significant number of their sites where previously they had not been able to carry out vital works. More communities will benefit from increased coverage and capacity, especially when those communities are emerging from the pandemic and desperately need better connectivity.”
Site for sore ops
It is now settled that operators in occupation of a site are entitled to apply for new rights, reports law firm Mishcon De Reya, in an analysis labelled More bad news for site operators? Mischcon’s legal experts summarised the implications of the Supreme Court judgment for infrastructure partners, with reference to three cases: Cornerstone Telecoms Infrastructure Limited (CTIL) versus Compton Beauchamp Estates, CTIL v Ashloch and AP Wireless and On Tower UK (formerly Arqiva Services) v AP Wireless.
In the case of CTIL v Compton Beauchamp the latter had granted a tenancy of a field to Vodafone which allowed Vodafone to erect a telecoms mast on the site. Vodafone’s contractual right to occupy terminated in 2017 but Vodafone failed to remove its apparatus and remained in occupation. CTIL, a joint venture between Vodafone and Telefónica used to manage joint sites, sought Code rights from Compton after the Code came into force. The UK legal system’s Upper Tribunal held that it had no jurisdiction to impose an agreement under the Code as Vodafone was the occupier, not Compton. The UK Court of Appeal agreed with the Tribunal.
In the case of CTIL v Ashloch Ltd and AP Wireless, Ashloch granted a 1954 Act protected lease of part of the roof of its building to Vodafone, which was later assigned to CTIL. AP Wireless subsequently acquired a 99-year lease of the roof, subject to CTIL’s lease. A tribunal ruled that an operator in occupation cannot apply for new Code rights and had no jurisdiction to impose an agreement und the new 2017 code. The first renewal of CTIL’s agreement would have to be under the 1954 Act procedure. The Court of Appeal agreed.
In the case of Tower versus AP Wireless, the latter granted a 20-year lease and various supplementary leases of farmland to On Tower, which were all excluded from the security of tenure provisions of the 1954 Act. Following expiry of the leases in 2016, On Tower remained on site and a tenancy at will arose through the parties’ conduct. After the new Code came into force, On Tower sought a new agreement from AP Wireless, which was much less favourable the party hosting the towers.
The Supreme Court concluded that an operator in situ, which applies for new Code rights is not to be regarded as the occupier of the site for the purpose of the Code. This means an operator can apply for new Code rights in those circumstances. “The decision marks a significant departure from the lower Courts’ approach, largely in favour of operators,” said the legal firm’s analysis. “Landowners will need to be alert to the practical implications, which include operators now being able to seek Code rights if they do not presently have them, but are already physically on site.”