Tribunal decision gives telecoms operators increased access rights16 Nov 2018
An important decision of the Upper Tribunal (Lands Chamber) in favour of the operator suggests that operators will be more forceful in their approach to dealings with landowners. Landowners will be forced to allow operators onto their land for initial non-invasive inspections where they compensate the landowner and it is in the public interest for them to do so.
The new Electronic Communications Code came into effect at the end of December 2017, replacing a regime which was considered to be unwieldy and impractical, but which cast enough doubt in the minds of operators and landlords so as not to litigate over the contents.
The new Code, found in section 3A of the Digital Economy Act 2017, sets out new rights for electronic communications operators to exercise rights, known as “Code rights”, to deploy and maintain, replace and renew electronic apparatus on, over or under land.
The New Code has seen a seismic shift in the way that landowners are compensated for allowing operators to install and more critically maintain, replace and renew apparatus. The New Code is expected to drive down rents to significantly lower rent comparables.
Since the New Code came into force there had been a question as to whether the operator had a right to survey a site for the purpose of determining its suitability. There was no express right in the Code for the purpose of preliminary inspection. The new decision has settled that debate and found in favour of the operator by imposing a broad construction of the granting of the “rights” under the New Code. Now, an operator can access for the purpose of non-intrusive surveys where it can provide evidence for its so doing.
The case* concerned a building owned by the University of London in Paddington. The operator claimed that it required access to the roof of the building for investigative works, as it was likely to be the most suitable venue in the locality. Critically, once a site is deemed suitable, an operator can impose an agreement on a landowner under the New Code. One sword in the armoury of the landowner is that by refusing an inspection, it can delay or prevent a Code agreement being imposed on it.
The Tribunal found that whilst there was no express right, a broad construction of “rights” in paragraph 3 of the Code should be applied. It therefore held that preparatory surveys and the required right of access do fall within the meaning of the “right to install” and should be considered to be a “Code Right”.
The second question was whether the operator was entitled to ask for an interim right without also seeking a permanent right. The Tribunal found again in favour of the operator and found that the absence of an application for permanent Code rights does not deprive the Tribunal of the ability to impose an agreement for interim rights. In light of this, the Tribunal had to consider whether the right sought by CTIL in this case should be granted.
The Tribunal held that any inconvenience to the landowner could be overcome by the payment of a compensatory payment to it, and that the prejudice to the landowner of having some non-intrusive works undertaken was small and likely to be overcome by the potential public benefit of the installation. The operator was permitted to carry out investigative works.
This is a critical case in that it demonstrates the increasing appetite for litigation from operators. Landlords should be aware that operators will use the decision to obtain access for investigative works and applications for the imposition of apparatus on sites will surely follow.
Kuit’s property dispute resolution team have extensive experience in telecommunications litigation and are able to advise you. Please contact Rebecca Jones or Andrew Weinberg on 0161 832 3434 for further information.
*Cornerstone Telecommunications Infrastructure Ltd v University of London (2018) UKUT 0356