A landowner has successfully resisted an operator seeking the conferral of Code rights on its land as the landowner was not in occupation of the land so could not grant the requested rights.

The Upper Tribunal held that it does not have jurisdiction to order the conferral of Code rights on the landowner as it was not in occupation of the relevant site. While the facts of this case are unusual, the decision highlights the need to identify who is in occupation before any Code rights can be granted / conferred.

Background

The operator, Cornerstone Telecommunications Infrastructure Limited (“CTIL”) sought an order conferring Code rights over a parcel of farm land. The land was previously let to Vodafone Limited (“Vodafone”) under a lease granted in 2004 for a term of 10 years. On expiry of the lease term, Vodafone remained in occupation. In 2017, following breakdown in negotiations for a new lease, the landowner issued possession proceedings in the County Court against Vodafone. Vodafone resisted the proceedings, alleging they occupied as a periodic tenant. As at the date of the hearing of this referral, Vodafone remained in occupation of the land.

Decision

The landowner argued that the Upper Tribunal didn’t have jurisdiction to order the conferral of Code rights over the land by the landowner as the landowner was not in occupation of the land, Vodafone was. The Code did not provide for the conferral of Code rights by a landlord or by site provider who is not in occupation to an operator who is not already in occupation.

CTIL sought to get around this by saying that Vodafone had agreed to concede the possession proceedings upon the conferral of the appropriate rights to CTIL and said that Vodafone would give an undertaking to this effect if required.

The Court agreed with the landowner and dismissed CTIL’s reference relying on two fatal flaws:

  1. The agreement sought by CTIL would not confer Code rights as the landowner is not in a position to grant those rights. Where the recipient of the Code notice is not in occupation of the relevant piece of land, it doesn’t have the ability to grant Code rights over the land.
  2. The Code right sought would, at best, have been contingent on Vodafone giving up occupation of the land. While in these circumstances, Vodafone may well have been prepared to give up occupation to permit the conferral of CTIL’s Code rights sought, but Vodafone were not party to the application and were not mentioned in any of CTIL’s statements of case or draft documentation. To make the order work, the Tribunal would have had to order something not argued before the Court. The Upper Tribunal decided, on a case management basis, that allowing an order which had not been sought by the Claimant should not be permitted.