The Supreme Court has decided three conjoined appeals concerning the way in which telecoms operators with equipment already installed on land can acquire new or different rights. The decision gives important clarification to a situation that commonly arises.

Ed Cracknell

Ed Cracknell

In very broad summary, where existing equipment is kept on land under a continuing agreement, the operator can apply to court for additional rights during the term of that agreement. The operator cannot, however, apply to modify its rights until the agreement has come to an end.

In other words, the parties must honour the terms of existing agreements, but operators can seek new rights that may from time to time become necessary, for example because of rapid advances in technology.

The decision accords with common sense. Landowners will be secure in the knowledge that operators cannot use the code to renew or renegotiate the terms of agreements during their contractual term. Operators will appreciate the flexibility to seek new rights that might not have been contemplated at the time of entering into the agreement.

The certainty provided by the decision should greatly minimise the risk of expensive disputes arising.

There are, however, still a number of questions relating to the code that remain outstanding. The government intends to make various changes to the code in the Product Security and Telecommunications Infrastructure Bill. Changes include encouraging the use of alternative dispute resolution processes, creating a process for operators to get fast access to land when faced with unresponsive landowners and bringing renewals that are required to be dealt with under other statutory regimes in line with the policy of the code.

Ed Cracknell is a partner at law firm Russell-Cooke