[2025] UKUT 280 (LC)

As to Compton Beauchamp, the short point made for the respondent is that it is now known that it is possible for an operator to apply under Part 4 of the Code for new Code rights during the currency of a Code agreement. The suggestion, if I have understood correctly, is that in the pre-Compton Beauchamp cases the Tribunal would order the conferral of Code rights out of caution, on the basis that they might be needed later because the operator gets just one bite of the cherry so the agreement has to give it everything that it currently needs or might need later; now, on the other hand, the operator can always come back for more and therefore a less cautious approach can be taken and there is no need to order the conferral of Code rights that might not be needed.

In my judgment the decision in Compton Beauchamp makes no difference to the approach to be taken to the terms of Code agreements. Paragraph 23(5) of the Code remains as it was. There is no reason why the Dale Park approach should not remain appropriate – and in fairness it was not argued that it does not. In every case the operator will need to show a business need for the terms it wants, and there will need to be consideration of the possible loss and damage to the site provider. A business need may be current or it may be future. The operator needs to provide evidence of need but does not have to establish a compelling case. Compton Beauchamp is not authority for the idea that consideration of the operator’s future business needs can be deferred because the operator can come back and ask for more; that would just store up costly negotiation and litigation for the future. That is particularly important in view of the fact that where a Code operator does ask for more rights in the course of an agreement there may be an issue about whether what it seeks is a new Code right (for which it can make an application under part 4) or the modification of a right it already has (for which it cannot: Compton Beauchamp paragraph 130). One can imagine the vehemence with which that point may be disputed.

Accordingly I take the view that the decision in Compton Beauchamp has not changed the way in which the FTT and the Tribunal will approach the terms of Code agreements.