Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

Factual and Procedural Background

The judgment consolidates three appeals concerning the Electronic Communications Code (“the Code”). The common thread is whether an operator that already has electronic communications apparatus (“ECA”) on land can obtain further or improved rights under the Code when it is, in fact, in occupation of that land.

• Appeal 1 (the “Compton appeal”): Company A’s equipment is on rural land owned by Company F. The original written lease to Company B expired in 2014; a tenancy at will followed and was later terminated. Company A served a paragraph 20 notice seeking new Code rights; the Upper Tribunal and the Court of Appeal held that the tribunal lacked jurisdiction because Company B was in occupation, making Company F incapable of granting rights under paragraph 9.
• Appeal 2 (the “Ashloch appeal”): Company A took an assignment of a protected business tenancy of rooftop space from Company B. Company E, the current head-lessee, resisted Company A’s paragraph 20 application, arguing both that Company A was the occupier and that transitional provisions obliged Company A to proceed under the Landlord and Tenant Act 1954 rather than the Code. The Court of Appeal accepted those arguments.
• Appeal 3 (the “On Tower appeal”): Company D’s 20-year contracted-out leases of farmland owned by Company E expired in 2016. Holding over under an unwritten tenancy at will, Company D applied under paragraph 20. The Upper Tribunal felt bound by the earlier Court of Appeal authority to hold that it lacked jurisdiction because Company D was in occupation.

Legal Issues Presented

1. Does an operator with ECA already installed become the “occupier of the land” for the purposes of paragraph 9 of the Code, thereby preventing it from acquiring further Code rights under paragraph 20?
2. How should the transitional provisions in Schedule 2 to the Digital Economy Act 2017 interact with existing or unwritten agreements when determining an operator’s ability to invoke Part 4 or Part 5 of the Code?
3. What, if any, route remains open to site providers to compel removal of apparatus once interim, temporary or subsisting arrangements have lapsed?

Arguments of the Parties

Operators’ Arguments (Company A & Company D)

• An operator already on site should be disregarded for paragraph 9; otherwise the Code’s policy of facilitating rapid network roll-out is frustrated.
• Textual indicators—especially paragraphs 26, 27 and 40—presume an operator may seek full rights notwithstanding existing occupation.
• The Court of Appeal’s reading forces operators to “future-proof” initial agreements, inflates consideration and leads to wasteful relocation exercises.

Site Providers’ Arguments (Company E & Company F)

• Paragraph 9 adopts an ordinary meaning of “occupier”; once the operator’s kit is installed it is in occupation and cannot contract with itself.
• Part 5 is the exclusive mechanism to vary existing bargains; allowing recourse to Part 4 would render Part 5 nugatory.
• The transitional provisions deliberately restrict retrospective application of the more operator-friendly valuation regime.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Rose, delivering the opinion for a unanimous panel, adopted a purposive approach:

1. Statutory Purpose. The Code aims to facilitate nationwide, modern digital infrastructure. Imposing an absolute bar on operators in situ undermines that aim.
2. Textual Cohesion. Paragraphs 26, 27 and 40 presuppose that an operator with existing apparatus can apply under paragraph 20; otherwise those provisions become incoherent.
3. Policy Consequences. The Court highlighted impractical outcomes under the Court of Appeal’s approach—operators would hoard rights, inflate costs or physically remove and reinstall apparatus simply to regain jurisdiction.
4. Part 4 vs Part 5. Holding parties to their original bargain is preserved: Part 4 can create additional rights but cannot be used to vary consideration or terms of an extant agreement before Part 5 becomes available.
5. Transitional Provisions. A purposive reading avoids random disadvantages to operators holding over under unwritten agreements and aligns with Parliament’s intention not to cause “radical change” to existing practices.
6. Definition Adopted. For paragraph 9, the “operator seeking new rights” is not treated as “the occupier” merely because its equipment is present. Occupation by another person (including another operator) may still bar an application.

Holding and Implications

HOLDING: The tribunal does have jurisdiction to entertain a paragraph 20 application from an operator whose equipment is already on the land; such an operator is not, for this purpose, the “occupier” in paragraph 9.

• Appeal by Company D (On Tower) ALLOWED.
• Appeal by Company A against Company F (Compton) DISMISSED because another entity (Company B) remained the actual occupier.
• Appeal by Company A against Company E (Ashloch) adjourned for further submissions on whether its paragraph 20 notice genuinely sought additional, rather than merely renewed, rights.

Implications: The decision restores a practical route for operators to obtain incremental rights without destabilising existing bargains. Site providers retain protection—modification of current terms still requires Part 5, and operators must compensate for any additional prejudice—but a complete bar based on occupation is removed, promoting faster deployment of digital infrastructure without compelling redundant litigation or site relocation.