[2025] UKUT 280 (LC)

In January 2021 the government consulted about possible changes to the Code, and asked the following questions:

“Question 18 Do you think that a court should be able to impose rights that allow more extensive upgrading and sharing than is permitted under the automatic rights in paragraph 17 in any, or all, of the following situations:

(a)

If the court is imposing a new agreement and such rights are requested?

(b)

If the court is imposing a renewal agreement and such rights are requested?

…

Question 19 Do you think the court’s jurisdiction to impose these rights needs to be expressly stated in the legislation, given that the Upper Tribunal has already held that this is possible?”

In its response following the consultation (Access to Land: consultation on changes to the Electronic Communications Code – government response, November 2021) the government said:

“4.17.

After careful consideration, during which we took into account the fact that this is an issue which has been considered in some detail by the courts, we have concluded that changes to this effect are not needed in relation to upgrading. Upgrading is included as a specific Code right in paragraph 3 of the Code, separately to the automatic right to upgrade provided for in paragraph 17. We think this makes it clear that rights to upgrade apparatus which are outside the scope of paragraph 17 can be agreed or imposed.

4.18.

We think the position in relation to sharing, which is not currently included as a Code right in paragraph 3, is less clear. Since we think it is important that, as with rights to upgrade, it should be possible for rights to share apparatus outside the scope of paragraph 17 to be agreed or imposed, we have decided to make changes to paragraph 3 to make it clear that sharing is a distinct Code right.

4.19.

As the right to share relates specifically to the right to share apparatus, we think this right should only be available to the operator who owns the apparatus in question. It should not be possible for subsequent operators to use this right to require an operator to share their apparatus with them. That is a separate matter for commercial discussion. Similarly, we do not think that an operator who is granted a right to share their apparatus, should automatically be able to effectively share their Code rights with other operators, although we acknowledge that a site provider may agree for them to do so.

4.20.

The sharing right we are introducing in paragraph 3 of the Code is therefore a ‘bare’ right to share, which - if agreed or imposed - solely gives an operator who has installed or is maintaining apparatus on land permission to share that apparatus with others. Any additional terms that may be needed to give effect to this right - for example, the circumstances in which another operator will be permitted to access the land - will be a matter for the parties to negotiate through additional terms or to ask the courts to impose.”

Following that consultation paragraph 3 of the Code was amended by the PSTI 2022 and it now reads as follows (with the additional sharing rights emboldened):

“(1)

For the purposes of this code a “code right”, in relation to an operator and any land, is a right for the statutory purposes—

(a)

to install electronic communications apparatus on, under or over the land,

(b)

to keep installed electronic communications apparatus which is on, under or over the land,

(c)

to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is on, under or over the land,

(ca) to share with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land,

(d)

to carry out any works on the land for or in connection with the installation of electronic communications apparatus on, under or over the land or elsewhere,

(e)

to carry out any works on the land for or in connection with the maintenance, adjustment, alteration, repair, upgrading or operation of electronic communications apparatus which is on, under or over the land or elsewhere,

(ea) to carry out any works on the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,

(f)

to enter the land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus which is on, under or over the land or elsewhere,

(fa) to enter the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,

(g)

to connect to a power supply,

(h)

to interfere with or obstruct a means of access to or from the land (whether or not any electronic communications apparatus is on, under or over the land), or

(i)

to lop or cut back, or require another person to lop or cut back, any tree or other vegetation that interferes or will or may interfere with electronic communications apparatus.

(2)

In sub-paragraph (1), references to "the first operator" are to the operator mentioned in the opening words of that sub-paragraph.”