Electronic Communications Code - On Tower UK Limited v British Telecommunications plc

The dispute concerned termination of a lease of part of a rooftop of a telephone exchange building, and centred on whether or not the lease was a Code agreement that had to be terminated in line with the requirements of the Code.

Code rights relate to the rights to install, keep and maintain electronic communications apparatus ("ECA") on, under or over land. However, for the purposes of the Code, "land" does not include the ECA itself. What that means, for example, is that a site sharing agreement allowing an operator to install antennae on existing apparatus would not be a Code agreement.

Even though the building in this case had been constructed to house ECA, there were additional uses for the building including storage and offices. Given that the sole purpose of the building was not to house ECA, the Tribunal determined the building was not ECA itself and was instead "land" within the meaning of the Code. This meant that the lease was a Code agreement and the termination mechanism in Part 5 of the Code had to be followed.

Another interesting issue arising from this judgment is the Tribunal's commentary on the interaction between contractual break rights and termination rights pursuant to the Code. 

Specifically, in circumstances where a Code agreement contains contractual termination rights, the Tribunal has endorsed the position that the termination provisions under the Code should prevail (assuming the Code agreement is in principle capable of being brought to an end in the first place). In other words, service of a contractual break notice isn't necessary, and the only operative notice needed to terminate the lease is notice under paragraph 31 of the Code. 

Any party looking to rely on a break right to terminate a Code agreement with specific break conditions should however be careful not to ignore those break conditions altogether: while it wasn't an issue in the present case, the Tribunal did admit the existence of contractual break conditions could make things a little more "difficult to analyse" in practice.

See further details regarding this judgment using the link here.