Telecoms Law Update – The Right to Survey Clarified by the Court of Appeal

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Telecoms Law Update – The Right to Survey Clarified by the Court of Appeal

Published 29 November 2019

The University of London –v- Cornerstone Telecommunications Infrastructure Limited

Judgment has been handed down today by the Court of Appeal in the case of The University of London and Cornerstone Telecommunications Infrastructure Limited (“Cornerstone”).

This is the second Court of Appeal telecoms decision to be released in as many months, bringing much needed additional clarity to the industry following the introduction of the New Electronic Communications Code (“The Code”1), back in December 2017.

In summary, the Court has found in favour of Cornerstone (in agreement with the earlier decision of the Upper Tribunal Lands Chamber (“the Tribunal”)) that the right to carry out a site survey to determine whether or not land or a building is suitable for the installation of electronic communication apparatus is a Code right.

This decision is of crucial importance to telecoms operators for whom a site survey (to determine, for example, whether lines of sight can be achieved from any given location and/or whether a building is structurally suitable) must be carried out before a permanent installation can be progressed.

If the right to survey was not a Code right, then telecoms operators could well have found themselves paying very significant sums to facilitate access, therefore undermining the overarching aims of the Code to make the rollout of telecoms infrastructure more cost-effective, quicker and easier.

Background

Lilian Penson Hall is a university halls of residence building opposite Paddington Railway Station. Vodafone lost a nearby telecoms site when the building upon which that was located was the subject of a redevelopment. As the result of this, telecommunications coverage in the locality had deteriorated.

As part of its plans to replace the lost coverage, Cornerstone sought to carry out a site survey of Lilian Penson Hall in order to determine whether it might be suitable as a location for a permanent telecoms installation.

Access for this limited purpose was, however, refused by the University, which claimed that the right to carry out a site survey does not fall under the remit of the Code.

As a result, Cornerstone asked the Tribunal to grant access for the site survey to take place. Following a hearing back in October 2018, the Tribunal confirmed that:-

  1. The right to carry out a site survey is a Code right under paragraphs 3 (a) and (d) of the Code;
  2. The right to carry out a site survey can be freestanding and time limited under paragraph 26 of the Code; and
  3. It was satisfied that the relevant test under the Code as to the network requirement for the site was met.

The University applied for, and permission was granted by the Tribunal, to appeal on points 1 and 2.

Decision

The Court of Appeal has sided with the Tribunal and found in favour of Cornerstone, to determine that the right to carry out a site survey is a Code right falling under paragraph 3 (d) of the Code and that it is also satisfied that the right can be freestanding and time limited under paragraph 26.

As a result, it dismissed the University’s appeal.

Outcome

This is a crucially important outcome for the telecoms industry.

As well as enabling site surveys to take place as a matter of right, the decision also has important implications for other short-term telecoms arrangements – siting a temporary mast at a music festival, for example.

Operators and landowners alike now have much needed clarity on these questions and can look to reach negotiated consensual agreements on this basis going forward.

The DACB Telecoms and Property Litigation Team represented Cornerstone in successfully opposing this appeal.

1Schedule 3A to the Communications Act 2003, as inserted by the Digital Economy Act 2017

Authors

Luke Maidens

Luke Maidens

Leeds

+44 (0)113 251 4944

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