The first half of 2024 has seen a number of key cases conclude that are set to influence the interpretation of the Electronic Communications Code.
Two cases in particular involving infrastructure provider One Tower UK (OTUK) have yielded influential decisions as Thrings Legal Director Simon McIlroy and Solicitor Sara Shaikh write.
A brief history of the ECC
Set out in the Communications Act 2003, the Electronic Communications Code (ECC) is a set of rights designed to facilitate the installation and maintenance of electronic communications apparatus on, under and over land.
On Tower UK Limited v British Telecommunications Plc (BT)
This case, relating to OTUK’s efforts to keep its existing telecoms equipment installed on a BT-owned building, revolved around the question of did that building itself – originally a telephone exchange - already constitute electronic communications apparatus (ECA). This was important because code rights may not be acquired over existing ECA – only over other land and property.
BT argued that the main purpose of the building was to house ECA, so the site as a whole was ECA and, BT said, OTUK could not have acquired further code rights over it. The court disagreed, clarifying that for a building to be considered ECA under the Code, it must solely house electronic communications apparatus. Here, the building had other purposes too, as it contained ancillary office space and kitchen areas.
This case was also noteworthy for the court’s ruling on whether, when terminating a lease, contractual break notices need to be served concurrently with statutory termination notices. In other areas of landlord and tenant law, it is generally accepted that both contractual and statutory termination notices need to be served. Surprisingly in this case, the court held that, in principle, a statutory termination notice served under the Code is also effective to terminate the underlying contract.
The decision on the service of notices in particular will be welcomed by property owners and could potentially have ramifications elsewhere in landlord and tenant law.
Gravesham Borough Council v On Tower UK Limited
Gravesham and OTUK were involved in a dispute regarding the renewal of a site agreement with the latter seeking a new code agreement under the ECC after failing to renew under the Landlord and Tenant Act 1954 (the legislation which governs business tenancies) – with the council opposing the renewal of a telecoms site lease in order to carry out roof repairs.
The case sought to establish whether OTUK, having failed to renew its tenancy under the 1954 Act, and therefore having lost the right to remain in occupation under that Act, was still entitled to apply for a new code agreement. In effect - did the Code provide OTUK with a fall-back option?
In this instance, the Upper Tribunal actually found in favour of Gravesham, depriving OTUK of the safety net that it expected to have in the form of the Code. Whilst the decision may only have limited application – given the 1954 Act is only relevant to a limited number of telecommunications code renewals - it is again an important ruling.
Simon McIlroy, Legal Director in the Thrings Property Litigation team, said: “These decisions have given some interesting and in some cases surprising results that have the potential to really shape the way the Electronic Communications Code is put into practice.
“The decision in the BT case is one for all landlords and tenants to be aware of - not just in a telecommunications context - for what it says about the interaction between contractual and statutory notices. Meanwhile the Gravesham case highlights the importance for operators of checking that they definitely do have rights under the Code
“We would always recommend that property owners seek legal advice, both when approached by telecoms operators in exercise of their rights under the ECC and when it comes to the termination of existing code rights.”
Thrings’ Property Litigation lawyers are experienced in all areas of property disputes, reaching a resolution often without recourse to court proceedings, and boasting an excellent track record when cases do go to Court. To find out more, get in contact.
