The Electronic Communications Code 2017 includes provisions that enable the Upper Tribunal to require landowners to allow telecommunications operators to have access to their properties so that an operator can determine whether electronic communications apparatus could be installed there. The litigation in EE Ltd v London Underground Ltd [2021] UKUT 128 (LC); [2021] PLSCS 102 concerned an application for access to a building in central London that forms part of London Underground’s operational estate. The operator had been required to remove its telecommunications apparatus from the rooftop of another building close by and believed that London Underground’s building might provide a suitable replacement. But it needed to confirm this by visiting and surveying the site.
London Underground opposed the application on the ground that its building contains infrastructure that is essential to the operation of the London Underground network, as well as being part of the country’s critical national infrastructure. It argued that the consequences would be extremely serious if its infrastructure were to be subjected to physical attack or sabotage – and that only key personnel, who have been security vetted to the highest level, are permitted to enter the property. It explained that visitors could not simply use a staircase or lift to get to the roof – and responded to the operator’s assurances that it was happy to comply with any security restrictions, that it had staff with the highest levels of security clearance and that it was required to meet similar requirements at other sensitive buildings in central London and elsewhere, by drawing the tribunal’s attention to the conditions that must be satisfied before granting operators Code rights.
The public benefit likely to be obtained from awarding an operator Code rights must outweigh any prejudice suffered by the occupier of the land in question. And it must be possible to compensate the occupier adequately for any such prejudice – by means of a monetary payment.
The Underground company argued that a monetary payment would not adequately compensate it for the risks involved in allowing the operator to have access to its building. But the tribunal decided that the possibility of a serious security incident resulting from such brief supervised access to the building was too remote and theoretical to amount to prejudice – and rejected the notion that the limited access proposed would require supervision that was incapable of being measured in financial terms.
Furthermore, the standard of proof that applies when an operator makes an interim application for rights of access in order to carry out a survey is less exacting than the standard that applies where an operator is seeking permanent rights to install apparatus. The tribunal need only be satisfied that the operator has a “good arguable case” that the conditions for granting operators permanent Code rights have been met.
The tribunal was satisfied that the operator had satisfied this test and agreed to grant the operator the interim rights that it was seeking (subject to security requirements to be agreed between the parties, with any necessary input from the tribunal). But it encouraged the operator to keep London Underground’s concerns in mind when considering the suitability of the building as a site for telecommunications apparatus. It would not be impossible to secure permanent rights to install apparatus on the roof – but would require co-operation and London Underground’s security concerns should be taken seriously.
Allyson Colby is a property law consultant
