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Operator cannot use para 27 to obtain para 20 imposed agreement

The Upper Tribunal has handed down judgment in Arqiva Services Ltd v APW on 19 June 2020, [2020] UKUT…(LC) determining that an operator under the Electronic Communications Code who is already in situ, cannot, by making an application under paragraph 27 of the Code, bring itself within paragraph 20 of the Code.

Wayne Clark, leading Jonathan Wills of Landmark Chambers, acted for the successful landowner.

This is an important decision of the UT effectively closing off a further attempt by operators to bring themselves within the ambit of para 20 of the Code. The Court of Appeal in CTIL v Compton Beauchamp 2019 had determined that only an occupier for the time being can confer Code rights. In recognised, however, that an exception to that essential principle was to be found in the temporary rights provided for by para 27 of the Code. It did not go on to determine whether the operator, having made and obtained temporary Code rights, could maintain a claim for an imposed agreement under para 20 of the Code, given that it was in occupation. The UT has now held that it cannot. Accordingly, Arqiva’s claim was struck out.

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