Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

Factual and Procedural Background

The appeal concerns whether the Upper Tribunal ("UT") has jurisdiction to require a freeholder who is not in occupation of land to confer rights under the Electronic Communications Code ("the Code") on an operator, when another operator currently occupies the land exercising code rights. The UT held it had no such jurisdiction. The appellant, a telecommunications infrastructure joint venture ("Cornerstone"), appeals this decision with permission from the UT.

The site at issue is a fenced compound on farmland containing a telecommunications mast and ancillary apparatus originally leased to an operator ("Vodafone") from 2004 for 10 years. Vodafone shares use of the mast with another operator ("Telefonica"). Cornerstone is a joint venture formed by Vodafone and Telefonica to manage telecommunications sites contributed by both. The freehold owner of the site is a landowner ("Compton").

Vodafone's lease expired but its apparatus remains on site, deemed lawful pending court order for removal. Cornerstone served notice under paragraph 20 of the Code seeking conferral of code rights from Compton only, not Vodafone. The UT found that Compton was not in occupation and thus could not confer code rights, and that the UT lacked jurisdiction to impose such rights on Compton in these circumstances.

Legal Issues Presented

1. Whether the Upper Tribunal has jurisdiction to require a freeholder who is not in occupation of land to confer Electronic Communications Code rights on an operator when another operator occupies the land exercising code rights.
2. The proper interpretation of "occupier" under the Code, including whether an operator in situ can be an occupier.
3. The scope of the Code's provisions regarding conferral, binding, renewal, and removal of code rights in the context of multiple parties with interests or occupation of the land.

Arguments of the Parties

Appellant's Arguments

• Paragraph 20 of the Code applies to "a" relevant person, indicating more than one person may be relevant, including freeholders not in occupation.
• The "relevant person" could be interpreted as (1) the person with title to grant rights, (2) the person with control over access, or (3) the person entitled to require removal of apparatus after operator rights end.
• The UT erred in holding that only an occupier with physical presence on the land can confer code rights.
• In some cases, such as a squatter or freeholder, the occupier may not have legal title but still be capable of conferring rights.
• Compton, the freeholder, should be regarded as an occupier or at least as having rights to confer code rights, especially where Vodafone’s occupation is disputed or limited.
• It is possible for multiple persons to be occupiers simultaneously under the Code.
• Temporary or interim code rights under paragraphs 26 and 27 may be imposed on persons other than occupiers, suggesting broader jurisdiction.

Respondent's Arguments (as represented in UT decision)

• Only an occupier of the land may confer code rights under paragraph 9 of the Code.
• Compton is not in occupation and thus cannot confer code rights.
• The UT’s jurisdiction under paragraph 20 requires the relevant person to be the occupier or someone to be bound by rights conferred by the occupier.
• Vodafone, as occupier, could confer rights, but Cornerstone did not seek agreement with Vodafone.
• Multiple occupiers of the same land (other than joint occupiers) are not contemplated by the Code.
• Temporary or interim rights imposed by the UT are treated as if made with the occupier, resolving apparent anomalies.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bruton v London & Quadrant Housing Trust [2000] 1 AC 406	Establishes that a person without legal title can grant rights over land (e.g., tenancy), but binding effect depends on circumstances.	Supported the view that occupiers without interest in land may grant rights binding only on themselves and consenting parties.
Bridgewater Canal Co Ltd v GEO Networks Ltd [2011] 1 WLR 1487	Consent of occupier is central as they are primarily affected and most easily identified.	Reinforced the importance of the occupier’s role in granting code rights.
Westminster CC v Tomlin [1989] 1 WLR 1287	Recognition of rateable occupation by a squatter.	Discussed in context of whether a squatter can be an occupier under the Code.
Woodcock v South Western Electricity Board [1975] 1 WLR 983	Held that a squatter is not entitled to require supply of electricity.	Used to illustrate limits on rights of certain occupiers under the Code.
Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9	Emphasizes importance of argument on specific facts in contested cases.	Referenced regarding views on squatters as occupiers.
Wheat v E Lacon & Co Ltd [1966] 1 QB 335	Meaning of "occupation" is context sensitive and not always aligned with property law definitions.	Guided the court’s approach to defining occupation under the Code.
Newnham College v HMRC [2008] 1 WLR 888	"Occupation" involves physical presence and control, influenced by statutory context.	Supported the court’s finding that occupation requires physical presence and control for Code purposes.
Graysim Holdings Ltd v P & O Property Holdings Ltd [1996] 1 AC 329	Degree of presence and exclusion required for occupation depends on premises and use.	Helped frame occupation as fact-sensitive.
HMRC v Sinclair Collis Ltd [2001] STC 989	Licence to occupy must have possession and control to amount to letting of immovable property.	Used to discuss characteristics of occupation relevant to the Code.
Chaudhary v Yavuz [2013] Ch 249	Physical presence of structures alone may not amount to occupation.	Supported distinction between occupation and mere presence of apparatus on land.
Abbey National BS v Cann [1991] 1 AC 56	Occupation requires more than fleeting human presence; may be through representatives.	Informed the court’s understanding of occupation by presence or control.
Wandsworth LBC v Singh (1991) 62 P & CR 219	Occupation can be discontinuous but with intention to occupy.	Supported the idea that occupation need not be continuous physical presence.
The Electric Telegraph Co v Salford Overseers (1855) 11 Exch 181	Telegraph company held to be in rateable occupation of telegraph poles and wires.	Analogous to telecommunications apparatus occupation for Code purposes.
The Lancashire and Cheshire Telephone Exchange Co v Manchester Overseers (1884) 14 QBD 267	Similar principle as above regarding occupation of telecommunications infrastructure.	Reinforced understanding of occupation in telecommunications context.
Vtesse Networks Ltd v Bradford [2006] EWCA Civ 1339	Occupation of fibre optic cables by party with sole right of use.	Supported notion that occupation depends on nature of hereditament and control.
Commissioner of Valuation for Northern Ireland v Fermanagh Protestant Board of Education [1969] 1 WLR 1708	Only one person can be rateable occupier of hereditament.	Used to argue against multiple simultaneous occupiers under the Code.
Westminster CC v Southern Railway Co [1936] AC 511	When multiple candidates for occupation, paramount occupation prevails.	Supported approach to determining single occupier where disputes arise.

Court's Reasoning and Analysis

The court began by examining the statutory framework of the Code, which permits code rights to be conferred only by agreement between the occupier of land and the operator (paragraph 9). The court emphasized that the term "occupier" is context-sensitive but, for the purposes of the Code, requires physical presence and control over the land.

The UT had found that the freeholder ("Compton") was not in occupation, whereas Vodafone had physical possession and control of the fenced compound. The court agreed with this factual finding and the legal conclusion that only an occupier may confer code rights. The UT’s reasoning that Part 4 of the Code does not depart from this principle was endorsed.

The appellant’s argument that the "relevant person" in paragraph 20 could include non-occupiers was rejected. The court explained that the Code distinguishes between conferring rights (only occupiers can do so) and being bound by rights (which others may agree to or be ordered to accept). The court also clarified that temporary or interim rights imposed by the UT under paragraphs 26 or 27 are treated as if made with the occupier, resolving apparent jurisdictional conflicts.

The court addressed the appellant’s contention that multiple occupiers could exist simultaneously but found that the Code contemplates a single occupier for conferral purposes, except for joint occupiers. The court also rejected the argument that Compton could be an occupier by virtue of rights to require removal of apparatus, noting paragraph 40(8) prevents removal orders while paragraph 20 applications are pending.

The court considered the appellant’s alternative arguments regarding occupation of parts of the land and renewal of rights under Part 5 of the Code but found these were not properly before the appeal as they were not argued before the UT or lacked factual basis.

Ultimately, the court held that the UT was correct in its analysis of occupation and jurisdiction under the Code, and that the appellant’s approach was inconsistent with the statutory scheme and facts.

Holding and Implications

The appeal is dismissed.

The court upheld the UT’s decision that it has no jurisdiction to require a freeholder not in occupation to confer Electronic Communications Code rights on an operator when another operator occupies the land. The decision confirms the central role of the occupier in conferring code rights and clarifies that conferral cannot be imposed on non-occupiers under paragraph 20. The ruling underscores the importance of physical presence and control in defining occupation for the Code’s purposes.

No new precedent was established beyond the application of existing principles to the facts. The practical effect is that the appellant and Vodafone may negotiate agreements, and if necessary, seek to bind Compton through proper procedural steps under the Code. The decision maintains the statutory balance between landowners, occupiers, and operators in telecommunications infrastructure deployment.