The operators are ‘amped’ about the possibilities but the decision leaves property owners ‘hertz-ing’…Trainee Solicitor, Elizabeth Russell looks at a recent decision under the 2017 Electronic Communications Code.

In the recent case of Cornerstone Telecommunications Infrastructure Ltd (CTIL) v The University of London, it was held that the Upper Tribunal’s powers to impose an agreement for access on a property owner under the Electronic Communications Code 2017 also extended to agreements solely for interim access.

What is the Electronic Communications Code?

The Electronic Communications Code 2017 (the Code) came into force in December 2017. The Code’s purpose is to enable the installation and maintenance of electronic communications networks and serve the wider public interest in providing electronic communications. As part of this, the Code confers certain rights (Code rights), including the right to install and maintain electronic communication apparatus and also the right to access land (for maintenance and operation of apparatus). The recent decision in the CTIL v University of London case confers even greater freedom upon operators by granting access for preliminary works as well.

Summary of the Case

The claimant wanted access to the roof of a building owned by the respondent to undertake several surveys and assess whether the roof would be suitable for the installation of electronic apparatus.

The respondent refused the claimant access to the roof, so the claimant invited the tribunal to enforce an agreement for interim access rights allowing them to undertake the survey.

The Upper Tribunal had to consider whether they could impose such an agreement, whether the claimant could seek an interim Code right without also seeking a permanent code right at the same time and whether there was a good arguable case that the conditions under the Code were satisfied.

The Upper Tribunal upheld judgment for the claimant on the basis that undertaking preliminary surveys was a Code right (the right under paragraph 3 of the Code to install apparatus on, over or under land included a right to enter and carry out any relevant steps). It followed that the right to install equipment entitled an operater to undertake preparatory surveys required prior to installation.

Regarding the interim rights point, the view was taken that it was not apparent from the Code’s explanatory notes or the relevant Law Commission report that interim rights could only be imposed as an interim measure pending the outcome of a permanent access claim under the Code. Further to this, under the Code, there is a requirement for notice to be served prior to any Code right application by an operator. The service of a notice under the Code does not import that a permanent right is being sought in the notice. The notice is solely a precondition of an application.

The Upper Tribunal also held in regard to the ‘good and arguable case’ argument, that the respondent’s complaint of inconvenience (for supervision of the operators during any surveys carried out) was something for which they could be adequately compensated. The other argument was that the benefit to the public from making such an order was paramount to any prejudice on the part of the respondent, as the main purpose of the Code is to benefit the public and its interest.

Outcome of Case

Whilst it was agreed that the interim right of access would be limited to a few occasions during a limited period, the decision made by the Upper Tribunal confirms the following;

  1. It allows operators to request access rights to a property as part of preliminary works prior to the installation of any electronic communication apparatus;
  2. That the Upper Tribunal can and will impose such an agreement for interim access on the above basis; and
  3. That an interim access right can be sought independently of a permanent access.

This decision on the Code rights really gives operators greater freedom than they had under the previous regime and, bearing in mind that the Code’s underlying purpose is to serve public interest, it will be very difficult for landowners to argue against the installation of electronic communication apparatus on their own land when operators can request land access for assessment of suitability prior to any claims for a Code right to install electronic communications apparatus.

This post was edited by Elizabeth Russell