In summary the recent decision of the Upper Tribunal in Cornerstone Telecommunications Infrastructure Limited v The University of London  UKUT 0356 (LC) is that:
- preparatory surveys and exploratory investigations, and a right of access to carry them out, are part of the operator’s right “to install” under the new Electronic Communications Code that came into force in December 2017 (“the Code”); and
- accordingly, if a landowner refuses to allow a telecommunications operator such access, the Tribunal will impose an agreement on a landowner affording the operator an interim Code right to access the site to survey and carry out exploratory investigations to establish the suitability of the site for installing its telecoms apparatus.
Cornerstone Telecommunications Infrastructure Limited (“CTIL”) needed to find a site to install its telecoms kit in the Paddington area, and expressed interest in The University of London’s (“UoL”) building for this purpose. It requested access to inspect and survey UOL’s roof to establish whether it was a suitable location to install telecoms apparatus. UoL refused access on the basis that the Code does not afford operators a right of access to private buildings for these (exploratory) purposes. Given the stalemate, CTIL instructed its solicitors to engage quite aggressively with UoL by serving notice seeking interim Code rights but the request was unclear (with a second notice served in an attempt to clarify matters/restrict the term of interim Code rights to four weeks) but still matters moved no further forward.
CTIL issued a notice of reference inviting the Tribunal to impose an agreement for interim Code rights exercisable for 28 days and offered a single payment of £50 in consideration.
The issues the Tribunal was asked to determine were:
- Whether the Tribunal has jurisdiction to impose an interim Code agreement that provides only for a right of access to survey
The Tribunal liked CTIL’s arguments that Code rights were a menu to be chosen from, meaning they did not all need to be sought for an agreement to be imposed.
The right “to install” must include the right of an operator to carry out all the steps leading to installation, including access to survey. Accordingly, a right to access is a Code right within the right “to install”.
The Tribunal considered it unrealistic for any operator to incur the costs of an installation without first considering the suitability of a site and it must be permitted to undertake that assessment.
The Tribunal also appeared quite persuaded that the public interest drivers of the Code i.e. better connectivity for all, should not be undermined by a restrictive interpretation of Code rights.
- Whether an operator can seek interim Code rights only or has to seek permanent Code rights at the same time
The Tribunal agreed with CTIL that the Code envisages the need for flexible interim agreements and it is not a requirement of seeking an interim agreement that a permanent agreement must follow. There are many instances where an agreement might only be needed for “a specified period” or until a “specified event” has occurred.
- Whether an operator can show that it is has a good arguable case that any prejudice caused to the building owner by the grant of the agreement can be compensated in money and the public benefit of the agreement outweighs the prejudice to the building owner
Here reference was made to a related case that justified CTIL’s need to have a new site in the area. In different proceedings it had agreed to remove its apparatus from a hotel that was being redeveloped. Hence there was a need for a new location in proximity to the old, to ensure continuity and quality of network coverage.
Arguments that UoL made for prejudice caused by staff time being diverted, lack of compensation being offered, concern over student safety and general inconvenience were rejected by the Tribunal as insufficient. The Tribunal did, however, suggest that compensation, consideration and other terms should be detailed and agreed by the parties in any agreement.
In terms of public benefit, the Tribunal could have been provided with more evidence in terms of the tangible and detailed impact on coverage by the removal of equipment from the hotel or as to why UoL’s site was to be preferred over another, but accepted that it would not be appropriate for CTIL to show there was no reasonable alternative. However, it was ultimately willing to accept that public access to high quality communications services had been impacted by the loss of the hotel site and the potential improvement of that coverage as a result of finding a suitable alternative site outweighed the prejudice to UoL of allowing the interim Code rights.
Unless a significant prejudice to a building owner can be established that will outweigh the prejudice to the public, even if that is only a potential prejudice, the Tribunal has now provided authority that it will be willing to step in and impose interim orders permitting access, given that this is a Code right.
We can expect to see more fishing expeditions by operators wanting to access sites for investigatory surveys, probably with standard interim Code agreements being proffered together with the threat that a Tribunal application will follow if not agreed.
That is not to say that there would not be arguments to challenge requests for access (for exploratory purposes), but each case will need to be considered on its facts.
With this in mind, we expect to see more and more interim code agreements negotiated and entered into. The form such agreements will take is yet to be shaped and whether bodies, such as the City of London Law Society, will seek to establish a standardised form (as they did with wayleaves) is yet to be seen. It will nevertheless be important that the first series of interim agreements paves a favourable path for landowners – that the terms of access are workable and not disruptive; that there are protective provisions concerning insurance and indemnities; that the landowner is fairly compensated; and, most importantly, that such rights are, as they are intended to be, interim and for a limited period of time. This would be reflective of what the Code of Practice seeks to encourage.