Just to recap. The Government last revised the Electronic Communications Code (ECC) in 2017, not least by making it both easier and cheaper for telecoms operators (broadband and mobile) to access public or private land in order to build new networks (here). This was a necessary change, but they arguably didn’t do enough work on the detail of its implementation.

The new legislation ended up triggering various disputes after telecoms operators began offering significantly lower rents for such sites – sometimes reducing rents worth thousands of pounds to just a few tens of pounds (here and here). In response, landowners became more likely to raise disputes over both new and existing wayleave (legal access) agreements. In some cases, this was starting to obstruct the ability of operators to expand their coverage and upgrade existing sites.

On the flip side, land and property owners faced complex considerations, such as the need to facilitate access and the inability to repurpose such sites for other more lucrative ventures once deployed. Likewise, where rooftop sites on buildings are concerned, there can be issues of mobile kit impacting insurance, proximity of base stations to residents (safety), and the fact that the property owner has to keep the area repaired (potentially becoming liable if they fail to do so). A small annual payment may not be enough to cover such issues.

Supreme Court’s Judgement

Some of these disputes recently reached the Supreme Court, which was largely focused on the question of who occupies the land upon which an operator’s kit (ECA) is presently installed. The main issue was whether and how an operator who has already installed ECA on a site can acquire new or better code rights from the site owner, which is relevant to the above issues and disputes over new (lower) rents etc.

The Court of Appeal (CoA) previously concluded that when an operator has already installed ECA on land, it will often be both the “operator” and “occupier of the land” for the purposes of the new ECC code (Paragraph 9). As an operator cannot enter into an agreement with itself, the CoA concluded that in those circumstances, an operator is precluded from applying for new code rights.

However, the CoA’s decision had big implications for the many thousands of agreements which were already in place between operators and site owners at the time the new code came into effect, which meant that operators couldn’t apply for new code rights to improve the security of their position on the land.’