January 22, 2019

The new Electronic Communications Code gets put to the test

Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 356 (LC) is the first substantial case on the new Electronic Communications Code (the Code), which has provided some much needed clarity for landowners and operators. The Upper Tribunal (Lands Chamber) (UT) was asked to decide whether to impose an agreement allowing access to a building for the purpose of determining whether it was a suitable site for the installation of electronic communications apparatus.

Statutory background

The Code came into force on 28 December 2017, replacing the original telecommunications code. The Code sets out the basis on which electronic communications operators may exercise rights – referred to as “Code rights” - to deploy and maintain electronic communications apparatus on, over and under land.

Under the Code it is possible, subject to various conditions, for an operator to seek an order for interim Code rights. These are Code rights granted for a limited period of time which do not benefit from the statutory continuation provisions.

Facts

Having been forced to move equipment from one of its sites near Paddington station, Cornerstone Telecommunications Infrastructure Ltd (the Operator) had been relying on a temporary site to keep the local communications network running. The Operator therefore approached the University of London (UoL), requesting access to survey a student hall in Paddington to determine whether it would be a suitable site to permanently install its electronic communications apparatus.

UoL did not want the apparatus on its building and refused to grant the Operator access to survey the site. Following further similar approaches and a subsequent stand-off, the Operator applied to the tribunal for an order for interim Code rights.

UT decision

There were three issues before the UT:

Is a right of access to undertake a survey a Code right?

The UT held that access to survey land and buildings is a right to which paragraph 3 of the Code (which sets out Code rights) applies.

In so doing, the UT concluded that the rights to install equipment and carry out associated works in paragraphs 3(a) and (d) of the Code must be interpreted widely, so that it encompassed the preparatory works which the Operator sought. Giving judgment, Martin Rodger QC, Deputy President of the UT, noted that to do otherwise would undermine the key principle of the Code, namely to deliver communications networks quickly and economically to the public.

Is an operator entitled to request an interim right without also, at the same time, seeking a permanent right?

UoL argued that an application for an order imposing interim rights was contingent on an application for an order seeking permanent rights. However, the UT looked at the language of paragraph 26 of the Code and concluded that there was no requirement for the Operator to seek a permanent right at the same time as it sought an interim right.

Had the claim for interim rights been made out in this case?

The UT confirmed that an application for interim Code rights under paragraph 26 of the Code would only be granted if the Operator has a “good arguable case” that the conditions prescribed by paragraph 21 for the making of an order under paragraph 20 of the Code have been met, namely:

  1. The prejudice caused to the site provider (here UoL) by the order is capable of being adequately compensated by money; and
  2. The public benefit likely to result from the making of the order is likely to outweigh the prejudice to UoL.

On the facts of this case, the UT held that the Operator had demonstrated a good arguable case that this test had been satisfied. In coming to this decision it made the following observations:

  • As part of its case, UoL quantified the costs it would incur for each site visit undertaken by the Operator, which showed that the prejudice could be compensated by money;
  • The Operator was not required at that stage to adduce evidence concerning the amount of compensation or consideration that might be due;
  • The Operator was not required to speculate about any particular prejudice that will be caused to UoL which they had not chosen to identify; and,
  • The second limb of the test does not require a comparison to be made between the public benefit that would arise from the use of the site in question and another site, which is clearly operator-friendly.

In conclusion, the UT held that as the agreement sought by the Operator was limited to a right of access during a limited period, the public interest outweighed the fairly small prejudice to UoL (which could be financially compensated).

Accordingly, the UT made an order imposing an agreement for interim Code rights. This enabled the Operator to undertake the surveys and investigations required to establish whether the building was suitable for the installation of electronic communications apparatus.

Comment

This decision confirms that the Code prioritises the provision of a choice of high-quality electronic communications services to the public, often at the expense of individual landowners.

The case did not discuss the consideration that would be due to UoL in relation to the interim rights, which will be a key concern for landowners going forwards.

The article first appeared in our Real Estate Bulletin - January 2019.