The Court of Appeal has backed a ruling that offers telecoms operators rights of access to land to carry out surveys to establish whether telecommunications equipment can be installed, even if landowners object.
The court agreed with the Upper Tribunal (Lands Chamber) that the tribunal has power under the Electronic Communications Code to impose on the occupier of a building an agreement permitting access to that building by an operator for the purpose of determining whether it is suitable for the installation of electronic communications apparatus.
The case is one of the first under the new Code to reach the Court of Appeal, and the tribunal decision which has now been upheld has paved the way for multiple requests by operators to carry out surveys on a variety of properties.
The dispute involved the University of London hall of residence named Lillian Penson Hall. Cornerstone Telecommunications Infrastructure Ltd (CTIL) – a company owned jointly by Telefonica UK and Vodafone – was looking for a suitable site in the vicinity of Paddington Station, and identified Lillian Penson Hall as likely to be the most suitable site.
It sought a right of access to the roof of the building by different professionals to carry out a survey inspection and investigation known as a “multi-skilled visit” (MSV). The university refused, and CTIL took the matter to the tribunal, which found in its favour.
The MSV has already been carried out, but the appeal proceeded as it raises an important issue of principle. Now the Court of Appeal has upheld the tribunal’s decision, albeit on different reasoning.
Jonathan Seitler QC, who appeared successfully on behalf of CTIL, greeted the decision as a “huge boost for telecoms operators,” adding that the Court of Appeal has approached the construction of the Electronic Communications Code “by reference to its purpose”.
He said: “The three judges unanimously found that ‘Where the legislation uses an imprecise word, a court is entitled to place strong reliance on the legislative purpose underpinning the legislation’. That is ‘… undoubtedly to facilitate the improvement of electronic communications throughout the country’.”
Alison Hardy, partner at Ashurst and telecoms specialist, agreed that the decision “will be welcome news for telecoms operators and a disappointment for landowners”.
She added: “The decision is important because the roll-out of 5G has seen operators sending out many requests to conduct surveys of sites to assess whether sites are suitable for the installation of telecommunications equipment.
“The Telecoms Code sets out a list of rights that are ‘Code rights’, which the tribunal can order a landowner to allow an operator to exercise over their land, if agreement can’t be reached. Crucially for this case, the list doesn’t include a right of entry to see whether a site is appropriate for subsequent installation.”
She said that the Court of Appeal found that a different Code right, the right to carry out works for or in connection with installation, covers the right to survey to assess suitability, continuing: “The Court of Appeal said that when the legislation uses an imprecise word, it is open to the court to place a strong reliance on the legislative purpose underpinning the legislation.
“So the right to survey is a Code right, not (as the tribunal had found) because it is implicitly included within the right to install, but because a survey falls within the scope of ‘works’ even if the survey is non-intrusive.”
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