Cornerstone Telecommunications Infrastructure v. Ashloch Ltd & Anor: Clarifying Jurisdiction under the Electronic Communications Code

Introduction

In the landmark case of Cornerstone Telecommunications Infrastructure Ltd v. Ashloch Ltd & Anor ([2021] EWCA Civ 90), the England and Wales Court of Appeal addressed a pivotal issue concerning the jurisdiction of the Upper Tribunal ("the UT") under Part 4 of the Electronic Communications Code ("the Code"). This case delved into whether the UT could impose Code rights over land occupied by an operator under a tenancy protected by the Landlord and Tenant Act 1954, specifically when the tenancy was established prior to the Code's enactment and continued beyond its contractual expiry.

The parties involved were Cornerstone Telecommunications Infrastructure Ltd ("Cornerstone"), a joint venture between Vodafone Ltd and the Telefonica group, and Ashloch Ltd & Anor. The central dispute revolved around the application of the Electronic Communications Code to existing tenancies and whether new Code rights could supersede or override protections afforded under the 1954 Act.

Summary of the Judgment

The Upper Tribunal, under the leadership of Martin Rodger QC, concluded that it lacked the jurisdiction to impose Code rights on land already subject to a tenancy protected by Part II of the Landlord and Tenant Act 1954. Consequently, the appeal lodged by Cornerstone was dismissed by the Court of Appeal, affirming the UT's decision. The judgment underscored that transitional provisions introduced by the Digital Economy Act 2017 did not extend Part 4 of the Code's applicability to existing protected tenancies.

Analysis

Precedents Cited

A cornerstone of the Court's reasoning rested on prior judgments, notably:

• Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd ([2019] EWCA Civ 1755)
• Cornerstone Telecommunications Infrastructure Ltd v University of London ([2019] EWCA Civ 2075)

These cases collectively established that under the Code, only the occupier can confer Code rights, a principle that Cornerstone attempted to challenge by arguing that, based on transitional provisions, Part 4 should apply to their existing tenancy.

Legal Reasoning

The Court meticulously dissected the interplay between the Electronic Communications Code and the Landlord and Tenant Act 1954, focusing on the transitional provisions introduced by the Digital Economy Act 2017. Key points in the Court's legal reasoning included:

• Transitional Provisions: The Court emphasized that the transitional provisions were designed to prevent retrospective application of the new Code to existing agreements, especially those protected under the 1954 Act.
• Occupier's Role: Reinforcing the principle from Compton Beauchamp, the Court held that only the occupier could confer Code rights. Since Cornerstone was operating under a protected tenancy, it could not unilaterally impose Code rights.
• Segregation of Code Parts: Part 4 of the Code, which deals with the court's power to impose agreements, was not intended to override existing protected tenancies. The Court clarified that transitional provisions did not extend Part 4's jurisdiction to such cases.
• Policy Considerations: The Judiciary underscored the policy intent behind the transitional provisions, aiming to balance the interests of telecommunications operators with those of landowners, ensuring stability and predictability in land use agreements.

Impact

This judgment has significant implications for the telecommunications sector and property law in the UK:

• Clarification of Jurisdiction: It solidifies the boundaries of the UT's authority under the Electronic Communications Code, especially concerning existing tenancies protected by the 1954 Act.
• Stability for Landowners: Landowners can be reassured that their existing tenancies continue to be protected and cannot be overridden by new Code rights imposed by operators.
• Operational Constraints for Operators: Telecommunications operators must navigate the Code's provisions carefully, particularly when dealing with pre-existing agreements, potentially limiting their flexibility in acquiring or modifying rights.
• Future Litigation: The decision sets a precedent for similar cases, guiding how courts interpret the interaction between new statutory codes and existing protected agreements.

Complex Concepts Simplified

Electronic Communications Code (the Code)

A statutory framework established to streamline the process by which telecommunications operators obtain rights to install and maintain equipment on land. The Code is divided into several parts, each addressing different aspects of these rights.

Part 4 of the Code

Grants courts, particularly the UT, the authority to impose Code agreements on landowners when operators seek rights but cannot reach a mutual agreement. This part is crucial for resolving disputes where operators need access rights.

Part II of the Landlord and Tenant Act 1954

Provides security of tenure to business tenants, allowing them to renew leases unless the landlord has specific grounds for termination. This act protects tenants from abrupt eviction without just cause.

Upper Tribunal (UT)

A superior court in the UK that handles appeals from lower tribunals and certain judicial reviews. In this case, it was the body assessing the jurisdiction to impose Code rights.

Transitional Provisions

Legal provisions that manage the shift from old laws to new ones, ensuring that existing agreements or rights are handled appropriately without disrupting established relationships or obligations.

Conclusion

The Court of Appeal's decision in Cornerstone Telecommunications Infrastructure v. Ashloch Ltd & Anor reaffirms the paramountcy of existing protected tenancies under the Landlord and Tenant Act 1954 over new statutory frameworks like the Electronic Communications Code. By upholding the UT's jurisdictional boundaries, the judgment ensures that established land use agreements remain secure and are not subject to unilateral alterations by telecommunications operators. This balance preserves the integrity of property rights while delineating the operational scope for operators within the evolving landscape of digital communications infrastructure.