Two cases decided in the Lands Chamber of the Upper Tribunal (the Tribunal) at the tail end of 2018 have confirmed that the Electronic Communications Code 2017 (the Code), which came into force 28 December 2017, provides considerable powers to telecommunications providers (referred to in the Code as Operators). In particular, Operators can gain access to a property in order to carry out preparatory surveys and exploratory investigations to determine if the property would be suitable to install apparatus even in the face of objection of the owner of the premises.

The two cases in are:

  1. Cornerstone Telecommunications Infrastructure Ltd v The University of London [2018] UKUT 356 (LC); and
  2. EE Limited and Hutchinson 3G UK Ltd v The London Borough of Islington [2018] UKUT 361 (LC) 

The Cornerstone case

The Operator in this case is Cornerstone Telecommunications Infrastructure Ltd (Cornerstone) a joint venture between Telefonica and Vodafone. Cornerstone was required to remove existing apparatus from the roof of a building in Eastbourne Terrace which was to be demolished and redeveloped, and were therefore seeking an alternative location within the vicinity of Paddington Station to install their telecoms apparatus.

Cornerstone identified the roof of Lillian Penson Hall, a building owned by the University of London (UoL), as a suitable location, and requested access from UoL in order to carry out an exploratory investigation of the property to confirm whether or not it would be appropriate for their requirements. UoL refused the request for access, and Cornerstone therefore approached the Tribunal to impose upon UoL an agreement for access under the Code.

The EE and Hutchinson case

As with the Cornerstone case, the Operator EE and Hutchinson (EEH) was required to relocate their existing telecoms apparatus and wase therefore looking for a suitable alternative location within Islington. An appropriate property, Threadgold House, was identified but the owner of the property opposed the installation of the telecoms apparatus and the Tribunal was asked by the Operator to impose an agreement for access upon the parties.

The decisions

In both cases, the Tribunal determined that the public benefit of the availability of high quality communication services to the public was greater than the prejudice caused to the property owners. The Operators were not required to demonstrate that that there was no reasonable alternative location to those put forward.

The Tribunal imposed a temporary right of access - by way of an imposed agreement - for the Operators over the properties for the purpose of carrying out the initial exploratory investigations. In consideration for the imposed rights, the Operators were obliged to pay to the building owners an amount representing the market value of the imposed agreement.

Please note that these cases only dealt with the initial access relating to the exploratory investigations and explicitly did not deal with access to install and thereafter use the telecoms apparatus. However, these judgments indicate that it is likely that this will be tested in future if a property owner seeks to prevent an Operator from using their property for such apparatus if the Operator considers the property suitable.

Additionally, it should be noted that both of these cases involved an Operator seeking to relocate existing apparatus. There was therefore an element of urgency as the Operator needed to find a new location swiftly in order to ensure continuity of the network coverage, and it may be that the balance of priorities between public benefit and prejudice to a building owner may be weighted more differently if time pressures are a less significant concern.

What this means for you

If an Operator makes a request to access your property in order to carry out surveys or exploratory investigations to determine the suitability of your property for the installation of telecoms apparatus, it will be difficult to prevent the Operator from gaining such access. The decisions do not provide that there are no grounds for a property owner to legitimately resist an access request, and each case will be assessed on the facts of that case, but the indication is that it will be difficult in the majority of cases to oppose such an access request.

The Tribunal has advised that if the prejudice to a building owner is something which could not be compensated by money alone that access rights would not be imposed.

In conclusion

If you receive a request for access for exploratory invitation which you intend to oppose, we recommend you seek legal advice before responding to the Operator.