[2024] UKUT 51 (LC)

So much for the parties’ contractual arrangements; we now turn to the Code, which regulates the legal relationship between Code operators and those on whose land their equipment is placed – the site provider. Unusually, the respondent site provider is itself a Code operator. The Code provides that where “Code rights” are granted by a site provider the operator has considerable security of tenure.

Code rights are defined in paragraph 3 of the Code and can be summarised as rights to install and keep electronic communications apparatus on, under or over land, to maintain it and to carry out works in connection with its installation or maintenance on under or over land, to enter the land and so on. It follows that a right to do something – eg to keep apparatus – anywhere other than on, under or over land is not a Code right.

Paragraph 108 provides that:

““land” does not include electronic communications apparatus”.

Paragraph 5 says this:

“(1)

In this code “electronic communications apparatus” means—

(a)

apparatus designed or adapted for use in connection with the provision of an electronic communications network,

(b)

apparatus designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network,

(c)

lines, and

(d)

other structures or things designed or adapted for use in connection with the provision of an electronic communications network.

(2)

References to the installation of electronic communications apparatus are to be construed accordingly.

(3)

In this code—

…“structure”  includes a building only if the sole purpose of that building is to enclose other electronic communications apparatus.”

The consequence of the interaction of those provisions is that where the claimant gives a mobile operator the right to mount antennae on one of its masts, the agreement between them is not a Code agreement, because the operator’s right is to install apparatus on other apparatus and not on land.

A further consequence is that the right to install equipment on a building is not a Code right if “the sole purpose of that building is to enclose other electronic communications apparatus”. What that quoted phrase means is one of the issues in this reference, because the respondent says that the Kenton Road exchange is such a building and that therefore the Site Lease is not a Code agreement. The claimant disagrees.

If the claimant is right, then the Site Lease is a Code agreement and paragraphs 30 and 31 of the Code apply to it and have an effect upon the way in which it can be brought to an end. In that event we shall have to decide whether the respondent has given a valid notice under paragraph 31. By “valid”, we mean formally valid; if the paragraph 31 notice is valid, there will be a further preliminary issue to be decided on another occasion if not agreed, namely whether the respondent can make out the grounds set out in paragraph 31(4)(c) or (d) on which it seeks to rely.