A new Electronic Communications Code 2017 came into force on 28 December 2017. It sets out the basis on which operators can install and maintain electronic communications apparatus on, over and under land. In The University of London v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 2075; [2019] PLSCS 226 the Court of Appeal had to decide whether the new Code permits an operator to carry out a survey to determine whether a building is actually suitable for the installation of telecommunications apparatus in the first place.
The University of London had refused the operator’s request for access. But the Upper Tribunal ruled that the right conferred by paragraph 3(a) of the Code (to install apparatus) or, failing that, by paragraph 3(d) (to carry out any works on land for or in connection with the installation of apparatus), must include a right to enter on to land to undertake preparatory surveys. If this were not the case, the ransom position that site owners would enjoy as against operators without rights to carry out surveys would defeat the intention of Parliament and subvert the operation of the Code.
The University took the case to appeal, arguing that the right that the operator was seeking was not a right that was listed in the Code. It argued that a right to install apparatus is different from a right to survey a site to decide whether it is suitable for installing it. Furthermore, paragraph 3 (c) of the Code confers rights “to inspect … electronic communications apparatus” (rather than land itself), and paragraph 3 (f) confers rights “to enter the land to inspect … any electronic communications apparatus” (as opposed to the land itself). The University argued that both paragraphs presuppose that apparatus has already been installed on land – and do not contemplate an inspection to decide whether or not to install apparatus in the first place.
The Court of Appeal agreed that, if a survey reveals that a site is not suitable and no electronic communications equipment is installed, it would be very difficult (if not impossible) to interpret the word “install” as embracing the survey itself – because there is no installation. So the ability to carry out a survey did not fall within paragraph 3(a) of the Code. But the court went on to decide that the word “works” in paragraph 3(d) should be given a wide interpretation. It was not necessary for the “works” in that paragraph to amount to the installation of electronic communications equipment, because installation was covered by paragraph 3(a). So paragraph 3(d) must have a wider meaning. And it was not necessary for the works to be “for” the installation of equipment, because the Code uses the phrase “for or in connection with”. Furthermore, that phrase is capable of relating to a future uncertain event. Consequently, the Court of Appeal agreed that paragraph 3(d) covered non-intrusive surveys (as well surveys involving intrusive work), whether or not a final decision to install electronic communications apparatus had been made.
The operator also won its argument that its application for the right to undertake a survey need not be accompanied by an application for full Code rights (which is more expensive to make). Or to put it another way, operators can make free-standing applications for interim rights under paragraph 26 of the Code without also seeking permanent Code rights.
Allyson Colby, property law consultant
