New Electronic Communications Code decision out on CTIL v Keast

The Upper Tribunal has today delivered a judgment in CTIL v Keast [2019]UKUT 116 (LC) which explores further points on the Code.

The decision considers four key issues as reviewed further below.

Issue 2 – the Tribunal confirmed that it could not impose on a occupier of land any Code right which was not sought by a paragraph 20 notice.  However, where fewer rights are sought at the Tribunal than as set out in the paragraph 20 notice and a landowner is misled or pressurised by that notice, then the Tribunal may consider this within its discretion as to what the appropriate terms are to be imposed on the occupier of land.  However, in this case the Tribunal felt there was no difference to what was being sought in the claim to what had been set out in the paragraph 20 notice. 

Issue 3 – the Tribunal considered whether electronic communications apparatus ("ECA") that was already on the mast site would, under common law principles, become part of the land meaning the operator would be seeking Code rights over the apparatus, which the Tribunal does not have jurisdiction to grant.  The Tribunal concluded that equipment installed pursuant to the Code, even if firmly affixed to the land, will not become "land" in accordance with common law principles.  It was therefore possible for the Tribunal to grant code rights over land that had ECA already installed on it.  The Tribunal further considered that the granting of such rights would not allow the operator to either use or remove the ECA as this would be a trespass or interference with another's goods.  

Issue 4 – the Tribunal considered that the “terms” on which Code rights may be granted, within Para. 23(2) of the Code, are unrestricted by anything but the discretion of the Tribunal as regulated by Para 21. The Tribunal is obliged to carry out the Paragraph 21 balancing exercise in relation to any “terms” of the agreement which is sought by the operator, but the operator can seek any rights, or seek to impose any obligations on the site provider, that it wishes; and the Tribunal can grant them if the Para 21 test is satisfied. The Tribunal stated that, “as a matter of logic”, it may be possible for an operator to seek a term which is beyond the scope of the Tribunal’s discretion but it is unclear what the boundaries of that discretion are.  However, the Tribunal (at paragraph 59) warned the operator not to "count its chickens" as the draft terms were a matter of discretion and the operator may have "an uphill struggle to persuade the Tribunal that some of them are appropriate". 

Issue 5 – The Tribunal found that the Claimant’s Ofcom direction conferred sufficient Code powers, both because such a direction was within the scope of the term “subordinate legislation” within s. 21(1) of the Interpretation Act 1978 so that it had been amended and extended automatically by the Digital Economy Act 2017; and because the conferral of Code powers is, in effect, binary – once the Code applies it applies for all purposes and to its fullest extent, regardless of the stated purpose for which they were granted. 

A link to the full decision can be found here

The Claimant is therefore successful on this preliminary issue, but it should not count its chickens. All the draft terms can be considered as a matter of discretion, and the Claimant may have an uphill struggle to persuade the Tribunal that some of them are appropriate.