0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2021] EWCA Civ 90

7 April 2021

An agreement under Part 4 of the Electronic Communications Code 2017 could not be imposed in favour of an operator who was holding over under section 24(1) of the Landlord and Tenant Act 1954 when the Code came into force.


The claimant (C) is a joint venture company formed by Vodafone and Telefonica. It was the current tenant of a lease of a roof-top site housing telecommunications apparatus whose contractual term had expired in 2012. Following an assignment in 2019, C was now holding over under Part II of the Landlord and Tenant Act 1954 (the 1954 Act).

Although Part 5 of the Electronic Communications Code 2017 (the Code) deals with the termination and renewal of agreements, C could not use Part 5 to terminate its existing lease and request a new lease because its existing lease was not contracted out of the 1954 Act’s security of tenure regime (the transitional provisions of the Code do not apply to agreements subsisting when the Code came into force on 28 December 2017 if the agreement is a lease to which the 1954 Act applies and the agreement is not excluded from the Act’s security of tenure regime).

Instead of applying to the court for the grant of a new lease under the 1954 Act, C gave notice to its landlord (L) under Part 4 of the Code (paragraph 20) seeking the grant to it of new code rights (Part 4 is the section of the Code dealing with agreements to confer new code rights imposed by a court). When no agreement was reached, C applied to the Upper Tribunal (Lands Chamber) (UT) to impose an agreement under Part 4 of the Code.

L claimed that the UT had no jurisdiction to impose new code rights under Part 4 in C’s favour.


Could C use Part 4 of the Code to claim new code rights from L?


In the case of Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755, the Court of Appeal held that a Part 4 agreement could only be imposed in favour of an operator on a person who was occupying the land. Part 4 was not therefore available to C as C was already the occupier of the site and Part 4 could not be used to impose code rights; or an existing operator already in situ.

To obtain a new lease, C had to apply to the County Court using the procedure in the 1954 Act.

Points to note/consider

  1. This decision has significant implications for an operator currently holding over under a lease with the benefit of the 1954 Act’s security of tenure provisions. In particular, section 34 of the 1954 Act will apply to fix a market rent, meaning that the operator may not for now be able to take advantage of the lower rent that is likely to be payable using the so-called ‘no network’ assumption under the Code. In addition, the operator will not be able to take advantage of the rights to upgrade and share sites and to assign agreements contained in the Code. Any renewed lease will itself be a lease to which the Code applies, so when that lease comes to an end, an operator will then be able to renew the lease under Part 5 of the Code (and take advantage of the Code’s more generous treatment for operators).

  2. It is hard to disagree with Lewison LJ’s statement in this case that many of the operator’s submissions about supposed defects in the Code are really about what the law ought to be, rather than what it currently is. An appeal to the Supreme Court in the Compton Beauchamp case mentioned above will be heard shortly. If that appeal is successful, some of those defects might be removed and an operator in the same position as C in the future might be able to use Part 4 of the Code to claim new code rights straight away from its landlord.

focus on...

Legal updates

Faiz and others v Burnley Borough Council [2021] EWCA Civ 55

The demand and acceptance of rent with knowledge of a breach of covenant will waive the right to forfeit if the rent accrued due after the breach but before the landlord had knowledge of the breach.


Legal updates

Criterion Buildings Ltd v McKinsey & Company Inc. (United Kingdom) and another [2021] EWHC 216 (Ch)

A landlord’s subjective determination of the ‘fair proportion’ of its total costs payable by the tenant by way of service charge could not be challenged by the tenant.


Legal updates

Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch)

A developer was unable on the facts to establish a right to drain onto its neighbour’s land without permission.


Legal updates

Real estate quarterly update - January to March 2021

Read more about our latest real estate update aimed at in house lawyers (and other professionals) practising in the property and real estate sector.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

David Harris

David Harris

Professional Development Lawyer

View profile

mailing list sign up

Select which mailings you would like to receive from us.

Sign up