Does the new Telecoms Code permit preliminary site suitability surveys?

Does the new Telecoms Code give the tribunal power to impose an agreement allowing access to a building to investigate it’s suitability for the installation of electronic communications apparatus?

The procedure in paragraph 26 of the new code enables interim rights to be obtained without the operator having to prove that the pre-conditions in paragraph 21, which apply to the imposition of a full Code agreement, are met. That is because under paragraph 26(3)(b) the operator need only satisfy the tribunal that it has “a good arguable case” that qualifying tests in paragraph 21 are met.

The recent Upper Tribunal (Lands Chamber) case of Cornerstone Telecommunications Infrastructure Limited – v- The University of London (2018) was the first decision given under the new code.

The claimant (CTIL) wanted have access to the roof of the University’s building to carry out a survey and other non-intrusive investigations to establish whether the site was as suitable as its desk top assessments suggested.

Access was likely to be required on three or four occasions in one twenty- eight day period for visits of about 2 hours by members of the claimant’s staff.

The rights sought were not temporary rights, but were interim Code rights. Here code rights may be imposed by the tribunal on an interim basis for a specified period or until the occurrence of a specified event (paragraph 26(2)).

The tribunal concluded that the right conferred by paragraph 3(a) to install apparatus on over or under land must include a right to enter on the land and to carry out each step required to achieve the permitted installation.

The fact that the code makes no mention of “entry” or of any specific works (such as excavation or tunnelling) did not mean that no right of entry has been conferred or that works were not envisaged as being an essential part of the process of installation permitted by paragraph 3 (a).
The fact that paragraph 3 (f) included a specific right to enter land to inspect, maintain etc., apparatus already on that land did not mean that paragraph 3 (a) precluded a right of entry to install and so must the taking of other necessary steps be included, since otherwise the grant of the right would be illusory.

The right to “install” was intended to permit an operation involving a series of distinct steps and the single word was sufficient to connote, as a component of the right, each of those steps. No electronic communications apparatus could be installed without some preparatory work, including a “multi skilled visit”, being undertaken.

The permitted preparatory work included site investigations and surveys, including those required to design works.

So the right to undertake preliminary surveys or “MSVs” is a Code right within paragraph 3(a) or, failing that, paragraph 3(d).

It cannot have been intended that an operator must first negotiate outside the scope of the Code to acquire a right of entry to undertake essential preliminary surveys before it could insist on the acquisition of Code rights.

Such an interpretation would enable landowners to hold operators to ransom negating operator’s ability to acquire code rights for payments assessed on a favourable “no network” basis which was contrary to the principles on which the new Code has been designed.

The University also objected that the claimant’s application for interim rights of survey and inspection was unaccompanied by any request for rights on permanent terms.

The tribunal said an operator can apply for interim code rights without a request for the same (or any) permanent rights being made concurrently. Such an application would be anyway pointless till the building’s suitability was confirmed by the inspections.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.