Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust – Telecommunications – Electronic communications code – Code rights – Claimant seeking right to install electronic communications apparatus on rooftop of residential building – Whether equipment cap to be included in agreement – Whether conditions in paragraph 17 of Code to be applied to upgrading and sharing rights – Reference determined accordingly
The claimant was a joint venture company which installed and maintained electronic communications apparatus which it made available to its two shareholders and to others for the purpose of providing their own networks.
The claimant brought a reference under part 4 of the Electronic Communications Code concerning a rooftop site at Maple House, Bournemouth Road, Peckham, south London, a modern, purpose-built, eight-storey building with offices on the lower floors and 62 residential flats on the upper floors. It was owned by the respondent, a registered charitable social housing provider.
The flats were let on various tenures including shared ownership leases and periodic tenancies. Some of the flats, including four on the eighth floor of the building which had balconies, were let on assured shorthold tenancies at open market rents.
The claimant sought the right to install electronic communications apparatus (ECA) on the flat roof of the property, which was already covered in 120 solar panels operated by the respondent. The most visible apparatus would comprise masts at roof level on three corners of the building immediately above and visible from the balconies of three of the top-floor flats. Access to the rooftop was through the common parts of the building, using a lift or the staircase, and then by means of a hatch reached by a ladder. The hatch was kept locked and residents of the building had no access to the roof.
Most of the terms of an agreement had been settled consensually between the parties. An issue arose concerning the terms to be imposed in relation to the equipment cap and the proposed restrictions on upgrading and sharing, which were all closely connected.
Held: The reference was determined accordingly.
(1) The term “equipment” in the draft agreement included, without limitation, “apparatus, cabling, antennas, dishes, equipment ducts cabins or cabinets and structures, and any ancillary apparatus, power, communications cabling, fixings or equipment”. Without more, the effect of the claimant’s definition of equipment was to allow it to install any ECA it chose at the site.
There was no need for an equipment cap. The agreement included a term prohibiting the claimant from overloading any part of the building, and requiring it to take all reasonable steps to ensure that it did not make the building or any plant or machinery on it unsafe. Additionally, in practice, the amount of apparatus capable of being installed would be limited by the strength of the supporting structure and the size of the communications site. The agreement did not permit equipment to be installed outside the communications site, and both practically and legally the potential for significant additional apparatus was limited. Furthermore, an equipment cap would invite dispute and jeopardise the claimant’s ability to provide a service to network providers for the duration of the agreement. Accordingly, the agreement would not include an equipment cap: Cornerstone v University of the Arts, London [2020] UKUT 248 (LC); [2020] PLSCS 166 followed.
(2) Paragraph 17 of the Code provided that an operator that entered into an agreement under part 2 of the Code might upgrade the ECA to which the agreement related; or share the use of such apparatus with another operator subject to conditions. The first condition was that any changes as a result of the upgrading or sharing of the ECA to which the agreement related had no adverse impact, or no more than a minimal adverse impact, on its appearance. The second condition was that the upgrading or sharing imposed no additional burden on the other party to the agreement.
The correct question under the first condition was whether the proposed upgrade would have an adverse impact on the appearance of the ECA itself; any adverse impact which was more than minimal was prohibited by the condition. Similarly, any additional burden on the site provider was contrary to the second condition.
(3) Paragraph 17 represented the irreducible minimum, in terms of upgrading and sharing rights, which an operator was entitled to under a Code agreement. The tribunal had jurisdiction to impose terms regarding upgrading and sharing which were less restrictive than paragraph 17 allowed. The onus was on the party asking for such terms to justify its request. The minimal rights conferred by paragraph 17 were not appropriate for an agreement between an infrastructure provider and a site provider for a term of ten years. Both the duration of the agreement and the nature of the claimant’s business were relevant considerations.
(4) Upgrading was a Code right in itself, and the facilitation of new technology was one of the objectives of the Code. It would not be appropriate to impose terms which might significantly impede upgrading. To do so would diminish the public benefit which was the object of the agreement and which justified its imposition on financial terms significantly less valuable than the market would demand.
The fact that the claimant was an infrastructure provider, hosting apparatus belonging to others, was relevant to the issue of sharing. The essence of the claimant’s business model was sharing. If the Code rights, which the respondent agreed should be conferred on the claimant in the public interest, could not be shared with network operators because they would breach the paragraph 17 conditions, there would be little point in conferring those rights at all.
The appropriate terms were those which permitted upgrading without limit, but which caused the least possible loss and damage, in accordance with paragraph 23(5) of the Code, by curtailing the number of persons entitled to make use of the claimant’s passive infrastructure by restricting the number of persons with whom the use of that infrastructure might be shared, without satisfying the paragraph 17 conditions, to two.
(5) An order would be made imposing an agreement on the parties in the terms they had agreed with the additional provisions determined. The annual consideration would be £5,000 (reflecting a nominal site value, building maintenance, insurance, the additional burden of managing access across the common parts and the additional anticipated costs as a result of the claimant’s right to share and upgrade the ECA without restriction). The compensation payable would be £3,068.
Oliver Radley-Gardner (instructed by Osborne Clarke LLP) appeared for the claimant; Tim Calland (instructed by Clarke Wilmott LLP) appeared for the respondent.
Eileen O’Grady, barrister
