The Upper Tribunal has considered an application for interim rights under paragraph 26 of the Electronics Communications Code in Cornerstone Telecommunications Infrastructure Ltd v (1) St Martins Property Investments Ltd and (2) The Mayor and Commonalty and Citizens of the City of London [2021] UKUT 262 (LC); [2021] PLSCS 176 and has reiterated criticism of the costs generated by such references.
The claimant sought an order for access to the roof of 1 London Bridge to facilitate multi-skilled visits to enable the claimant to assess the suitability of the building to accommodate electronic communications apparatus to serve the area around London Bridge.
The first respondent was the leaseholder of the building with a remaining lease term of more than 100 years. The second respondent was the freehold owner and had been joined by the claimant so that they would be bound by the decision. The UT agreed that the second respondent had been dragged into the reference unnecessarily. The conferral of interim code rights under paragraph 26 is not a voluntary act of the site provider; it is an imposition provided for by statue and sanctioned by an independent tribunal. The claim against the second respondent was dismissed with costs.
The first respondent did not challenge the claimant’s case for the imposition of interim rights but objected to the terms for the grant of access. They were concerned in particular with the claimant’s requirement to carry out an intrusive structural survey which included the right to cut the roof covering to determine the structural framework beneath; drilling holes in the roof or walls to ascertain the location of structural beams and load-bearing capacity; and removing plaster board and/or cladding to identify the construction materials beneath. They argued that the roof of the building was coated with a material which would be very difficult to reinstate to its original condition if it was pierced or damaged by intrusive works and that the structure of the building could be assessed by a purely visual inspection.
The UT acknowledged that 1 London Bridge was a prominent building completed to a very high specification and declined to impose an agreement permitting the claimant to carry out intrusive investigative works. If, following non-intrusive works, further works were still required and agreement could not be reached, the claimant could return to the tribunal and seek additional rights.
As regards the costs of the application, the UT considered it reasonable under section 84(2) of the Code to award the first respondent its legal fees for advice and negotiating the agreement of £11,000. However, the UT was very critical of the costs incurred by both parties in pursuing the reference, reiterating the warning in Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General Partner Ltd [2019] UKUT 183 (LC); [2019] PLCS 106 that the new Code regime is intended to facilitate the provision of telecommunications services without delay and at limited cost. The claimant’s costs, described by the UT as “hugely disproportionate for a case in which the principle of access was not in dispute” were £30,500. The first respondent’s costs were £82,500, of which the claimant was ordered to pay £12,500.
Louise Clark is a property law consultant and mediator
