This is a telecoms case dealing with important questions of law and practice about when and how an application to the Tribunal for a new code agreement under the Electronic Communications Code 2017 (the Code), can be made.
The existing agreement was an expired lease which was validly contracted out of the security of tenure provisions of the Landlord and Tenant Act 1954 and, although granted before the Code came into force, was subject to the transitional provisions of the Code. Following the expiry of the existing agreement, the operators served a notice on the site provider pursuant to paragraph 33(1) of the Code, requesting termination of the existing agreement and the grant of a new agreement.
When terms could not be agreed, the operators made an application to the Tribunal under paragraph 33(5) of the Code for a new Code agreement under paragraph 34(6). The operators required a new agreement so they could take the benefit of the additional protections afforded by the Code in relation to sharing and upgrading and sought a reduction in the consideration payable from £5,693.64 per annum to £250 per annum. The site provider contended that a new agreement should not be granted because, among other things, the Operators' requirements were already met by the rights continuing under the existing agreement and it was more appropriate for the existing agreement to be modified under paragraph 34(2) of the Code. There were 2 preliminary issues to be determined by the Tribunal.
The first was whether the application for the grant of a new agreement should fail in the absence of a pleaded case as to the site specific need for a new agreement (as opposed to continuing with existing rights).
The second preliminary issue was whether the operators could instead pursue a case for modification of the existing agreement under paragraph 34(3) of the Code in the alternative, despite the relevant OFCOM notices not being served on that basis.
On the first issue the Tribunal found:
- The application for the termination of an existing agreement and grant of a new agreement is not bound to fail in the absence of a site-specific case advanced as to why a new agreement is needed. The Tribunal considered that the policy reasons for introducing the Code (to confer broader rights and more flexibility on operators) meant that operators should not have to prove special justification for the grant of a new agreement complying with the Code.
On the second issue the Tribunal found:
- Where the operators have not served a notice identifying that a different change to the existing agreement is sought, they cannot pursue a case for alternative relief. As the notice had been served on the basis of termination of the existing agreement, the operators could not hedge their bets and plead modification of the existing agreement in the alternative. A fresh notice will need to be served unless the site provider consents to the alternative approach.
