In the first substantive referral to Upper Tribunal on the New Electronic Communications Code:
- The need for an operator to enter onto prospective sites to undertake preliminary surveying works is a Code right under paragraph 3(a) or 3(d) of Paragraph 1;
- The landowner raised the defence that a survey was not required as there were more suitable sites in the area, but this was rejected by UT – an operator should be entitled to undertake preliminary surveys to ascertain if a site is suitable
- An operator may apply for interim rights without the need at the same time to be seeking a permanent right on the site;
- The operator must make out a good arguable case for the imposition of interim rights to successfully obtain the order for an interim right;
- An interim right will be granted to an operator for a fixed period or until the occurrence of a specified event.
(Cornerstone Telecommunications Infrastructure Ltd v The University of London  UKUT 356 (LC))
This may prove a way for operators to unlock agreements with hesitant landowners as it permits the grant of interim Code rights with a fixed termination date, avoiding the lengthy notice requirements of the permanent rights.
Background and Decision
The Upper Tribunal (“UT”) has made its first substantive decision in a reference under the new Electronic Communications Code (the “Code”) on the question of whether the Court has the power to impose an agreement allowing access to a building for the purpose of determining whether it is a suitable site for the installation of electronic communications apparatus.
Cornerstone Telecommunications Infrastructure Limited (“CTIL”) wished to survey the rooftop of a University of London (“UL”) student halls in Paddington as a potential future site for a telecoms installation.
UL do not want the apparatus on its building and refused to grant CTIL access to the rooftop to survey the site for suitability. The questions for the UT to consider were whether:
- preliminary surveying works were a Code right; and
- interim rights could be imposed without the need for an operator to be seeking the grant of permanent rights on the premises.
UT held that:
- The Code does grant an operator the right of access to undertake a survey (or ‘multi-skilled visit’) of potential premises for the installation of electronic communications apparatus.
- There was no reason why Code rights could not be conferred or granted contingently on the outcome of a preliminary survey, so the right to survey was either an express right, or in the alternative, it was only logical that the right be implied. Without such a right landowners could significantly delay operators finding new premises by refusing to permit surveys of potential sites.
- There is an OfCom Code of Conduct note in relation to requests by operators for MSV’s which was referred to in the judgment and landowners should be sure to request that the information set out in the Code of Conduct is provided in order to minimise disruption and the need for wasted visits and continued disturbance. Operators should be clear as to their requirements for site surveys.
- It is possible for an operator to apply for an Interim Right under the Code without the need to be seeking a permanent site in the same location.
- “Interim Rights” under paragraph 26 being distinct to “Temporary Rights” under paragraph 27 which had to be parasitic to the grant of permanent Code rights.
- The implication of this being that a landowner may grant “Interim Rights” without this being tied to the grant of a permanent right – might this be a back door permitting landowners to contract out of the long termination provisions of the Code by entering into short term “Interim” agreements? CTIL argued that these Interim Rights reflected the policy of the new Code that electronic communications networks should be created quickly and cheaply.
- The UT may make an order for the grant of Interim Rights if, and only, if:
- A notice pursuant to paragraph 20(2) must have been given by the operator stating that agreement is sought on an interim basis; and the following two conditions has been met:
- The operator and landowner have agreed to the making of such an order; and
- The UT is satisfied that the operator has a “good arguable case” that the test in paragraph 21 for the making of an order under paragraph 20 is met. The UT must be satisfied that there is a “good arguable case” for the imposition of a permanent right.