Telecoms Code: Operators’ entitlement to survey new sites confirmed

An important decision on the new Electronic Communications Code answers the hotly-contested issue of whether landowners can avoid the imposition of telecoms apparatus by preventing operators from undertaking initial suitability surveys.

The Code came into effect at the end of 2017 and 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.

Facts

The University of London was approached by 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 standalone 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.

Comment

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.

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.

Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 0356