Operators in occupation under a tenancy at will or periodic tenancy do not have Code rights and are unable to obtain them (Arqiva Services Ltd v AP Wireless II)

Article summary

Property Disputes analysis: The Upper Tribunal (UT) was asked to determine whether it has jurisdiction under Part 4 of the Electronic Communications Code (‘the Code’) to impose non-consensual Code rights over land in favour of an operator that was occupying that land as a tenant at will. Applications had been brought both under para 20 (permanent rights) and under para 27 (temporary rights). The UT found that there was no jurisdiction because it was bound to apply the Court of Appeal’s decision in Compton Beauchamp (as applied by Ashloch). However, it was also found that the policy of the Code could never have intended such an outcome, the Court of Appeal may have taken a ‘wrong turn’, and permission to appeal would be granted. Written by Justin Kitson, barrister at Selborne Chambers.