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Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC)

The Upper Tribunal has delivered judgment in CTIL v Keast [2019] UKUT 116 (LC), with the judgment available here

The decision decides a few interesting points under the Code:

1.     The Tribunal doubted whether it was unlikely that a discrepancy between a paragraph 20 notice and what was claimed, where what was claimed was less than what was in that notice, would invalidate the process (see paragraph [29])

2.     The Tribunal found that code rights could not be asserted purely against electronic communications apparatus within paragraph 5, as those rights could only be asserted against land, and land excludes electronic communications apparatus (see paragraph 108). However, if rights were sought to keep apparatus on land, then (even if the apparatus was vested in a different operator who had agreed to transfer ownership), then that was permissible under the code as the code rights in such a case related to the land and not the apparatus. The Tribunal helpfully clarified the effect of paragraph 101 of the Code and made clear that conventional common law annexation principles were not relevant in cases falling within that paragraph (see paragraphs [44] - [49]).

3.     The Tribunal found that policing the terms sought under a code agreement was a matter of discretion not jurisdiction under paragraph 23 of the Code. It was in principle open to grant any terms, but the discretion to grant was naturally ringfenced by the principles in paragraph 23. The Tribunal doubted that the inclusion of a term which the Tribunal could not grant would invalidate the whole process (paragraphs [56] - [61]).

4.     The Tribunal found that an old code "system of conduits" operator was converted by the operation of the transitional provisions into a "system of infrastructure" operator (paragraphs [79] - [100]).

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