The Electronic
Communications Code came into effect at the end of 2017. It was drafted
with a considerable amount of care but there remains much potential for discord
between the competing interests of landowners and operators. It seems
inevitable, therefore, that any lacuna in the drafting will become a potential
battleground.
The Code has seen a seismic shift in the way that landowners
are compensated financially for allowing operators to install apparatus on
their land. Whilst the valuation provisions in the Code are yet to receive
judicial scrutiny, it is generally accepted that ‘rents’ under it will be
significantly lower than those granted under its predecessor.
As a result, many landowners have scrutinised the Code for
anything that they could use to prevent operators from installing apparatus in
the first place. An apparent lacuna is that the Code does not expressly grant
operators a ‘Code right’ to survey a new site for the purpose of determining
its suitability. Until now, the theory went that if you did not allow the
operator to undertake such a survey in the first place, it would be unable to
determine whether a site was suitable and would therefore have to look
elsewhere.
The recent decision in Cornerstone
Telecommunications Infrastructure Ltd v University of London [2018] UKUT 356
(LC) provides some answers.
Facts
The University of London was approached by Cornerstone Telecommunications
Infrastructure Ltd (CTIL), a joint-venture between Telefonica and Vodafone,
requesting permission to survey the rooftop of one of the University’s
building, in order to assess whether CTIL wished to install a new mast on it.
The University did not want to have a new mast installed and so refused to
grant CTIL’s access request.
CTIL served a formal Code notice on the University,
demanding the grant of an ‘interim’ agreement under the Code that would permit
it to access the rooftop for surveying purposes. In the absence of a positive
response, CTIL applied to the Tribunal and asked it to consider two questions:
- is the right of access for surveying purposes a ‘Code right’
for the purposes of the Code? - can an operator apply for an ‘interim’ Code agreement
without it being a precursor to the grant of a full Code agreement?
In a lengthy judgment, the Tribunal has answered both
questions in the affirmative.
Right for access to undertake surveys?
Paragraph 3 of the Code sets out a menu of nine ‘Code rights’,
being the rights that the Tribunal can grant to operators for the purpose of
providing their network. These include the rights:
- ‘to install apparatus on, under, or over the land’ –
paragraph 3(a); - ‘to carry out any works on the land for or in connection
with the installation of apparatus on, under, or over the land or elsewhere’ –
paragraph 3(d).
However, nowhere within paragraph 3 does it expressly state
that operators can be granted the right to access for the purpose of surveying
land, in order to assess its suitability.
While the Tribunal noted the absence of any express right,
it also considered that the ‘rights’ were drafted using very broad language. It
held that preparatory surveys and the right of access to carry them out do fall
within the ordinary meaning of the words ‘right to install’ and therefore can
legitimately be granted as part of the menu of Code rights.
In coming to this conclusion, the Tribunal was also
influenced by the public policy decision behind the Code; namely to enable the
fast and cost-effective roll-out of new electronic communications services. It
noted that it would be entirely contrary to this policy if landowners could
simply refuse access to operators and/or hold them to ransom by seeking to
negotiate enhanced financial payments for the grant of access.
When can interim rights be sought?
Paragraph 26 of the Code enables an operator to apply to the
Tribunal for the grant of new Code rights over a piece of land for a specified
period of time after which the rights will automatically terminate.
In determining whether to grant such a request, the Tribunal
must have regard to the tests that operators must satisfy to obtain a
full-blown Code agreement under paragraph 20 of the Code:
- that the prejudice caused to the landowner by the grant of
the rights is capable of being adequately compensated by money; and - that the public benefit likely to result from the making of
the order outweighs the prejudice to the landowner.
However, paragraph 26 also states that the Tribunal need not
carry out a detailed consideration of these tests. In an application for
interim rights it only needs to be convinced that the operator has a ‘good
arguable case’ for satisfying them.
The University argued that CTIL could only apply for an
interim agreement under paragraph 26 of the Code, as a precursor to a full
application for the installation of apparatus and the grant of a full Code
agreement. Its concern was that otherwise operators could seek long-term ‘interim’
agreements, simply on the basis of a ‘good arguable case’ and avoid the full
scrutiny of the Tribunal. It argued that CTIL’s stand-alone application for the
grant of a limited right of access to the University’s building could therefore
not be granted by the Tribunal.
The Tribunal undertook a detailed analysis of the wording of
paragraph 26 and was satisfied that there was no express or implied obligation
to link an application for interim rights to a full application.
It also noted that the Tribunal has a discretion whether or
not to grant interim Code rights and confirmed that, if there were any factors
that indicated that the operator was attempting an abuse of process, these
would be taken into consideration when exercising that discretion.
Finally it referred again to the policy underlying the Code:
to give greater weight to the public interest in the roll out of new electronic
communications networks, rather than to the public interest in the preservation
of private property rights. Accordingly it held that there was nothing to
prevent CTIL from making a stand-alone interim application.
Decision on interim rights
In light of the decision on the extent of its jurisdiction,
the Tribunal then had to consider whether to grant the right sought by CTIL and
in doing so emphasised that the evidential burden will still rest on operators
when making such applications. On the basis of the evidence in front of it, it
considered that:
- any inconvenience caused to the University by the surveying
exercise was capable of being resolved by way of a compensatory payment by
CTIL; and - the prejudice caused to the University of having a few
individuals accessing the rooftop and undertaking non-intrusive surveys was
likely to be small and was outweighed by the potential public benefit of
improving a poor signal strength.
The Tribunal therefore ordered that CTIL be entitled to
access the university’s rooftop for the purpose of surveying its suitability
for the installation of new apparatus.
This is a landmark case both as the first substantive
judgment to have been given under the Code and because of its likely impact.
Access for the purpose of carrying out initial surveys is
not an automatic right. But where an operator is simply requiring a right of
access for the purpose of carrying out non-intrusive surveys and can provide
some evidence to support its request, it appears that the Tribunal will be
willing to exercise its discretion in favour of operators.
Comment
Landowners will understandably grumble that they have lost
one of their main trump cards in their fight to prevent Code agreements being
imposed on them. For operators though, this judgment will be seen as a
vindication of the new Code world that they lobbied hard for and something
which is entirely necessary to enable the continued development of electronic
communications networks ahead of UK plc’s roll-out of 5G services from 2020.
Albeit this is a decision of the Upper Tribunal (Lands
Chamber) in England and Wales, the Code applies across England, Wales and
Scotland.
Richard Willcox is an Associate with Shoosmiths LLP. He is a
property litigator, based in Milton Keynes, and deals with all areas of real
estate and landlord and tenant litigation.
