Latest decision On Electronic Communications Code 2017

On Friday 19th June 2020 the Upper Tribunal (UT) handed down the latest decision on the Electronic Communications Code 2017 in Arqiva v AP Wireless II (UK) Limited [2020] UKUT 195, adding to the mounting collection of judicial interpretation of the Code.

Arqiva were in occupation under a lease which was contracted out of the Landlord and Tenant Act 1954. The lease expired in 2016 and was not renewed and, surprisingly and very reluctantly the UT held that the operator had no Code rights and was not entitled to acquire any based on the following reasoning:

• Following expiry of the contracted out lease in 2016, Arqiva continued to occupy as a tenant at will without any written agreement
• As there was no written agreement there was no “subsisting agreement” under the 1984 Code which could invoke the transitional provisions of the 2017 Code
• Following the Court of Appeal decision in Cornerstone v Compton Beauchamp Estates [2019] EWCA Civ 1755, the UT had no jurisdiction to impose Code rights under Part 4 of the Code in favour of an operator that was in occupation.

This is a significant decision for operators, many of whom remain in occupation on an undocumented basis for long periods and as things stand, if this was the position when the new Code came into force on 28 December 2017 it appears they have no ability to obtain Code rights in relation to such sites.

The UT judge was extremely critical of the CA decision (albeit in a very polite, judge-like way!) and clearly felt that her decision was out of line with the policy of the Code. She has given permission to appeal and we will be reporting on any further developments in due course.