Cornerstone Telecommunications Infrastructure Ltd v St Martins Property Investments Ltd and another – Telecommunications – Electronic communications code – Interim code rights – Claimant seeking access to first respondent’s property for multi-skilled visit – Whether freeholder to be bound by interim rights – Whether right to undertake destructive investigations to be granted at first hearing – Claim allowed in part
The claimant referred to the tribunal for an order under para 26 of the Electronic Communications Code imposing an agreement on it and the respondents, on an interim basis, granting it access to the roof of a building known as 1, London Bridge. The purpose of access was to facilitate multi-skilled visits (MSVs) to enable the claimant’s contractors to assess the suitability of the building to accommodate electronic communications apparatus. The claimant also sought the right to carry out “investigative works”, by taking up parts of the roof of the building in order to investigate its structure and suitability to host the proposed equipment.
The building was completed in the 1980s and occupied a prominent location at the southern end of London Bridge, immediately adjoining the river. It had been identified by the claimant as a potential site for apparatus required to replace equipment currently located on a building in Borough High Street, but its suitability needed to be confirmed by the various surveys involved in an MSV.
The first respondent held a head lease of the building for a term of 150 years from 1987 and sub-let it to a number of occupational tenants. The second respondent owned the freehold of the building.
The respondents did not take issue with the principle that the claimant should be allowed access to the roof of the building to carry out its surveys. However, issues arose about the terms on which access should be allowed and in particular whether the right to undertake destructive investigative works should be granted at this stage.
Held: The claim was allowed in part.
(1) The conferral of interim Code rights under para 26 was not a voluntary act of the site provider; it was an imposition provided for by statute and sanctioned by an independent tribunal. The agreement conferring the rights was made for the parties and imposed on them. It followed that a freeholder could not complain that a leaseholder was in breach of a covenant prohibiting it from carrying out works or interfering with the building, or from permitting or suffering a third party to do those things, when those things were done, not by the leaseholder, but by a third party whom the leaseholder had no power to resist because it acted under rights imposed by the tribunal: EE Ltd and another v Islington London Borough Council [2019] UKUT 53 (LC) considered.
The tribunal could not see any circumstances in which the second respondent would have a cause of action arising out of the exercise of rights imposed under the Code. As it clearly did not intend to complain if the rights were exercised, and as there was no realistic prospect of the lease being terminated for the short period the rights would be exercisable, there was no need for the code rights to be made binding on the second respondent. Therefore, the claim against the second respondent would be dismissed as it ought not to have been included as a party to the reference. Nor should it be necessary for other freeholders in the same position be made parties to references under para 26, at least where the only rights sought were to carry out an MSV.
(2) The tribunal had power to impose rights authorising an operator to investigate the structure of a building to ascertain whether it was suitable for the installation of communications apparatus. The question was whether and at what stage it should do so. Under para 26(3), the tribunal’s jurisdiction to make any order conferring interim rights was discretionary. By para 23(1), it might make such modification to the code rights sought as it thought appropriate. By para 23(2), the agreement had to contain such terms as the tribunal thought appropriate and, by para 23(5), it had to include terms ensuring that the least possible loss and damage was caused by the exercise of the rights.
There were particular sensitivities on the part of the respondent to the claimant being given carte blanche to undertake intrusive works. In particular, the surface of the roof was said to be coated with a particular proprietary material which would be difficult to reinstate to its original condition if it was pierced or damaged by intrusive works. The respondent also considered that the structure of the building could be assessed by a purely visual inspection. This was a prominent building completed to a very high specification and this was not a case in which the respondent’s concerns could be dismissed as mere obstruction or oversensitivity.
Therefore, the tribunal would not impose an agreement including provisions for the claimant to carry out intrusive investigative works at this stage. Once the claimant had carried out such non-intrusive works as it needed to establish the suitability of the building, if the parties could not agree, the claimant could come back to the tribunal and seek additional rights. It could ask at that stage for any additional time to carry out further investigations.
(3) By trying to design a one-size-fits-all compensation scheme, the claimant had produced a complicated piece of drafting which might be over-sophisticated and unnecessary if the compensation being sought was modest, as was likely in most cases involving only access. There was no reason why the agreement needed contractual compensation machinery at all. As the details of the provisions were not agreed, rather than determine those details, the better course was to omit them entirely, leaving the parties free to agree how to resolve any compensation claims which arose out of the exercise of the rights to be conferred. If they could not reach agreement, they could make use of the statutory compensation procedure and ask the tribunal to determine compensation.
Under para 84(2)(a) of the Code, a site provider had the right to compensation for expenses which it had incurred, including reasonable legal and valuation expenses. In principle, at least where non-destructive investigations were being undertaken, professional supervision of professionals was not something which operators should be expected to pay for: EE Ltd and another v London Underground Ltd [2021] UKUT 128 (LC); [2021] PLSCS 102 considered.
Rory Cochrane (instructed by Osborne Clarke LLP) appeared for the claimant; Jonathan Wills (instructed by Bryan Cave Leighton Paisner) appeared for the first respondent; the second respondent appeared by its representative.
Eileen O’Grady, barrister
