Court ruling sheds light on impact of new code
At the end of 2017 the new Electronic Communications Code came into effect with enhanced powers for operators to install network facilities and the terms under which they can do this.
The code was subject to considerable debate in the drafting stages for the legislation against the backdrop that Parliament wishes to give greater weight to the public interest in the roll out of new electronic communications networks rather than securing rights of landowners.
Hence the case of Cornerstone Telecommunications Infrastructure Limited v University of London published November 2, 2018, with an Upper Tier tribunal decision constituted one of the first commentaries from the courts on the implementation of the new code.
While this article does not look at terms of new telecommunications leases or rental levels, it does look at the extent to which the operators can demand the rights to look at sites and seek court orders to enforce granting of leases in appropriate cases.
The Cornerstone case was in respect of the rooftop of a city building and, although very different to a rural site, the impact regarding the operator’s abilities to exercise such rights are the same for both types of sites in England and Wales.
In a nutshell the University of London did not want the mast on the roof of its building and objected to allowing the operators to survey the roof to see if it was suitable. When the university refused to give access the operators applied to the court with two fundamental questions, namely first whether a right of access for surveying is a code right and secondly whether an operator can apply for an interim code agreement for access to proceed without necessarily being bound to take on a full code agreement afterwards.
On both counts the tribunal supported the operator. The burden of proof still rests with the operators but the court has to look at the individual circumstances and in the case of access for surveying it needs to be considered whether it is sufficiently easy for the operator to make good or compensate for any inconvenience or damage caused.
Access for the purpose of carrying out initial surveys is not an automatic right but where the operator simply requires access for a non intrusive survey tribunals appear to be supporting the operators in view of the Government's overall policy.
In terms of rural sites the same principles will apply but the possibility of interruption and damage to buildings is probably significantly lower in most rural locations. If land owners have any queries on this subject they should check with their solicitors or land agents.
Steven Corfield is a Partner and agricultural specialist at Shropshire law firm, FBC Manby Bowdler LLP.
