New law means telecoms operators can now force building owners to give access to buildings to assess their suitability for telecoms installations

Much has been made of the introduction of the new Electronic Communications Code (the “New Code”); the statutory charter of rights for telecoms operators that slipped onto the statute book between Christmas and New Year 2017 following the enactment of the Digital Economy Act 2017.

Generally, the New Code has been rapturously received by telecoms operators but has proved much less popular amongst the landowner community. This divergence of opinion reflects the fact that two of the the Government’s stated reasons for ushering in the New Code were (a) to promote technological advances by giving operators greater rights and freedoms over land (known as “code rights”), and (b) the associated ‘double whammy’ benefit of enabling operators to have to pay landowners much less for those rights.

Understandably, therefore, a need has emerged on both sides of the fence to fully understand what qualifies as a “code right” and what doesn’t. In the first reported case under the New Code, the Upper Tribunal (the new home for many New Code disputes) had to decide this question: is the right to gain access to a building purely to survey its suitability for a new telecoms installation against the landowner’s will a “code right”?

CTIL v the University of London

The facts of this dispute were commonplace. Cornerstone (the O2-Vodafone joint venture) wished to access a building owned by the University to carry out the usual pre-acquisition surveys to assess its suitability for a new installation. The University didn’t want such an installation and so refused access, arguing that the menu of ‘code rights’ under the New Code didn’t include a speculative right to access land to survey its future potential. With their sights locked on gaining access to the building, CTIL applied to the Tribunal for the grant of an ‘interim code right’ compelling the University to give access, arguing that the whole purpose of the New Code would be undermined if operators were not allowed to use it to gain access to potential new sites.

A plain reading of the New Code would suggest that the University was right. The New Code applies to code rights. It lists a menu of entitlements that qualify as code rights (e.g. the right to install, maintain, repair, and upgrade kit) and is drafted so that anything that is not on the list is not a code right. The right to access a building to survey its potential is not listed as a code right.

However, no doubt mindful of the Government’s stated objectives when introducing the New Code, the Upper Tribunal took a ‘purposive’ approach to its reading of the New Code and decided that the right of access for surveys is a code right (and one that can be obtained from the Tribunal as an interim right, even though it may ultimately transpire that the building is unsuitable). The Tribunal therefore granted CTIL the right to access the University’s buildings to run their surveys, no matter how unhappy this made the University.

Learning points

The learning points from the case are as follows:-

  • Since before the New Code was introduced, telecoms operators had statutory rights to require landowners to provide access to open land for survey purposes;
  • The New Code has extended that right to building in most circumstances subject to the payment of appropriate compensation;
  • The legal test to be applied is that an operator will be entitled to insist on access if a good arguable case could be shown that:-
    • Any prejudice suffered by the building owner from giving access could be financially compensated; and
    • Any prejudice suffered would be outweighed by the public benefit of allowing the operator to explore the suitability of the site (having regard to the overarching principle that it is in the public interest to have access to a choice of high quality telecoms services).
  • In most cases, these hurdles are likely to be fairly easy for an operator to overcome them unless a building owner can rely on some special circumstances (such as an intention to redevelop the building, for which the New Code makes specific allowance); and
  • In return for giving access, the building owner is entitled to receive financial compensation. In CTIL, the University argued that £400 per visit was reasonable but the Tribunal was not asked to decide the level of compensation so this issue remains unresolved.

Comment

Based on the wording of the New Code, it was certainly open to the Tribunal to take a literal reading of the New Code and find that the right to access a building ‘on spec’ is not a code right. However, that would have significantly undermined the ability of telecoms operators to acquire new sites and would have put building owners in a ransom position. It would also have led to a difference in legal approach between open land and buildings. At a time when there is widespread acceptance that the New Code has dramatically reduced the sums that landowners can charge for allowing telecoms equipment to be installed on their land, a decision in the University’s favour in this case would have significantly undermined the effectiveness of the New Code.

Unsurprisingly, therefore, the Tribunal decided to read the New Code in a way that gives it the teeth that the Government intended it to have. The decision gives a clear mandate to operators to insist that building owners give access for surveys voluntarily in order to avoid litigation. The ability of a building owner to resist giving access is going to be limited, and in reality the CTIL decision will in most cases move the debate on to the question of whether an operator should be entitled to the permanent right to install and keep a telecoms installation on a building if its survey results are positive.

In practical terms, there will be day to day disputes about how much compensation a building owner should be entitled to in return for providing access for surveys.  However, the sums involved are likely to be low it is unlikely to be worthwhile for an individual building owner to litigate such a dispute, whereas operators may relish the opportunity to obtain a ruling that would set an industry-wide precedent about how that compensation levels should low. It may only be a matter of time before this issue comes before the Tribunal.

For further information about this article or the new Electronic Communications Code generally, please contact Steve Eccles.