Electronic Communications Code

Many of these agreements pre-date the Electronic Communications Code which came into force on 2 December 2017 and were governed by the previous code of 1984 and it is also common for such agreements to have been assigned between operators numerous times.

This article explores a case relating to an agreement which was made pre the Electronic Communication Code of 2017. However, agreements made prior to 28 December 2017 under the previous 1984 code are retrospectively governed by the Code, but with some modification.

The recent case of AP Wireless II (UK) Ltd v ON Tower UK Ltd [2024] UKUT 429 (LC) (“AP Wireless II (UK) Ltd”), has highlighted the importance of a landowner knowing who the relevant operator is for the purpose of Part 5 of the Code.

Part 5 of the Code deals with the:

1. Continuation of agreements under the Code when the contractual term expires or is brought to an end;
2. Termination of agreements under the Code; and
3. Renewal of agreements under the Code.

It is therefore important for the landowner to know who the relevant operator is for the purposes of serving and receiving notices and negotiations of terms of agreements.

The AP Wireless II (UK) Ltd case was concerned with whether an assignee of a licence governed by the Code was to be treated as a party to the Code for the purpose of Part 5, where the assignee did not enter into a Deed of Covenant and where there was no direct obligation for the assignee to comply with the terms of the licence. The assignee did, however, assume responsibility for the agreement and was paying the liabilities and complying with the terms as prescribed in the licence. The assignee wanted to apply for a new agreement under the Code but a challenge was brought as to whether the assignee was the relevant operator and therefore challenged as to whether they were they able to apply for a new agreement under the Code.

The Upper Tribunal in the AP Wireless II (UK) Ltd case held that a lawful assignment had occurred even without a Deed of Covenant and without a direct obligation to comply with the licence terms as the assignee had assumed the primary responsibility in the licence and was, therefore, to be treated as the relevant operator under the Code.

Due to the Upper Tribunal decision, the assignee was able to apply for a new agreement under Part 5 of the Code, as the relevant operator.

The key outcome from the Upper Tribunal decision was that a party can be assumed to be the relevant operator even where that party has not executed a Deed of Covenant directly with the site owner, provided that the party has assumed the burden of the agreement together with compliance of the terms of the agreement.

Please note that this article and information contained in this article only applies to agreements entered into before the Code was made on 28 December 2017. The burden of licences and wayleaves entered into after 28 December 2017 are automatically passed to the new assignee on assignment.

Mullis & Peake is not responsible for external links.