Telecoms: Court of Appeal ruling on operator’s right to survey

United Kingdom

The Court of Appeal has concluded that paragraph 3(d) of the Code shall be construed to include an express right for operators to enter upon land to undertake a survey to assess suitability for the installation of electronic communications equipment.

Paragraph 3(d) of the Code grants a right to “carry out any works in connection with the installation of electronic communications apparatus on over or under land or elsewhere”.

On appeal from the Upper Tribunal, the Court of Appeal was asked to decide whether the Court had power under the Code to grant operators a right to undertake surveys (otherwise known as Multi Skilled Visits (“MSV”)) to determine whether land is suitable for the installation of electronic communications apparatus.

A survey of land is a necessary step in the process of installation of equipment and, placing strong reliance on the purpose of the legislation to enable improvement of electronic communications networks, the Court of Appeal decided that a survey was the first step in the series of works in connection with installation of equipment.

The Court of Appeal also confirmed that an application to undertake a survey could be a free-standing application for an “interim right” under paragraph 26 of the Code.

This is a helpful clarification of Code rights. Landowners need to be aware that operators have a standalone right to inspect land. It is hopeful that this clarification results in operators seeking rights connected with an MSV under paragraph 3(d) only rather than the full panoply of Code rights. In light of the comments made in the Central St Giles reference, landowners need to have good reasons before they object to inspections and should engage with operators to agree terms on which the inspection can take place.