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Telecoms operators win right to survey sites

The introduction of the Electronic Communications Code at the end of 2017 has led to a significant reduction in the financial incentives available to landowners that allow telecoms operators to install apparatus on their land. This has, in turn, led to decreased motivation for landowners to have apparatus installed on their land at all.

One tactic employed by reluctant landowners to date has been to deny telecoms operators the ability to survey their land to assess suitability on the basis that if a site could not be surveyed the operator would have no option but to consider alternative sites for its equipment. However, the recent decision of the Upper Tribunal in Cornerstone Telecommunications Infrastructure Ltd v University of London means that this tactic is no longer available.

In the Cornerstone case the telecoms operator (CTIL) required a new site for a telecoms mast and identified a site near to Paddington station, owned by The University of London (UL). CTIL requested access from UL to survey whether the site would be suitable. UL refused permission and, in the absence of any agreement, CTIL invited the Tribunal to impose an agreement which would allow CTIL access.

The Tribunal decided the following key issues:

  • The right to survey potential sites is a ‘Code Right’: The Code contains a ‘menu of rights’, including the right to install telecoms equipment and carry out associated works. These rights are drafted widely, and it was considered wrong to limit the broad nature of the rights. Notwithstanding the absence of any express reference, the right to survey potential sites fell within these.
  • It is possible for operators to seek an interim Code right (such as this right to survey) without seeking permanent Code rights: An application made for interim (i.e. temporary) rights does not impose a condition for an application to then be made for permanent rights. This reflects the reality that there will be occasions where only temporary rights are needed by operators.
  • The prejudice caused to the landowner could be adequately compensated by money: CTIL required only a small number of site visits, and it was possible to estimate the sum required to compensate UL for the time spent by their staff in facilitating access.
  • The likely public benefit outweighed the prejudice to the landowner: Improving poor signal strength in the area trumped the prejudice to UL in having the proposed rooftop surveys undertaken. The Code was drafted with modern-day public policy in mind, with greater weight being given to the public interest in the provision of electronic communications than that given to preservation of private property rights. This decision reflects that thinking.

The Tribunal has made it clear that they are willing to intervene and force landowners to allow operators access to survey potential sites. The driving force behind the Code is to support the rollout and development of an enhanced, robust telecommunications network in the UK. This outcome is perhaps then unsurprising, but it is potentially unsettling for landowners.

It follows that the Tribunal are likely to continue to exercise their discretion in favour of telecoms operators, meaning it may be in the landowner’s interest to permit access from the start. Landowners should remain conscious of the fact that the threat of a potential (and likely strong) Tribunal application now lurks behind these initial access requests.

While clarification of this somewhat unclear legislation is welcomed, the decision acts as a warning to landowners that requests for access by telecoms operators will now have to be complied with. It is no longer possible for landowners to avoid the installation of telecoms apparatus simply by saying “no” to initial surveys.

Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 356

November 2018

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