Telecommunications – Electronic Communications Code – Interim rights – Claimants applying to access critical national infrastructure to assess suitability to host electronic communications apparatus – Whether security concerns sufficient to demonstrate prejudice to prospective site provider – Application granted
The claimants were telecommunications operators. The defendant was a subsidiary of Transport for London responsible for running the London underground system. The claimants applied to the Upper Tribunal under para 26 of the Electronic Communications Code requesting, on an interim basis, code rights to enable them to undertake a multi-skilled visit (MSV); the proposed MSV would involve a small number of the claimants’ surveyors, engineers and telecommunications experts having access to the roof of a building belonging to the defendant to assess the technical suitability of the site for the installation of new telecommunications apparatus.
The building to which the claimants wished to have access and in respect of which the reference was made was part of the defendant’s operational estate, which was designated as critical national infrastructure and referred to by the defendant as a network power control centre. That provided a sufficient description of the function of the building at this stage of the proceedings. The defendant was reluctant to provide further details of exactly how the building was used but had concerns about the security risk if third parties were given access.
The building was in Central London, very close to another roof-top used by the claimants as a site for their telecommunications apparatus. The building owner had requested the claimants to vacate the roof-top and remove their apparatus. They did not enjoy any security of tenure at that site and had to comply with the owner’s request. The claimants had lighted upon the defendant’s building as a suitable alternative site for their apparatus. Whether the building was suitable or not at a technical level could only be assessed by undertaking the MSV and carrying out the necessary surveys.
Held: The application was granted.
(1) Although it was not mentioned specifically in the list of code rights in para 3 of the Code, the right to carry out an MSV could be conferred as a code right, on an interim basis, under para 26 of the Code, without the operator needing to apply under para 20 for the tribunal to impose an agreement conferring the same rights on a permanent basis. That was important because when the tribunal considered an application under para 26, it need only be satisfied that the claimant had a good arguable case that the conditions in para 21 for imposition of the relevant code right were made out. That required the claimant to make out its case to the normal civil standard of proof on the balance of probability; a good arguable case was a lower test than was laid down by para 21 itself. The claimant had to show that it had a plausible evidential basis for its claim that the para 21 conditions were satisfied. The test was flexible and fact specific: University of London v Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 2075; [2019] EGLR 58 applied.
(2) The first of the para 21 conditions was that any prejudice caused to the relevant person by the order was capable of being adequately compensated by money. The only relevant person in this case was the defendant, since it was the only person being asked to confer or be bound by the rights sought by the claimants. The second condition was that the public benefit likely to result from the making of the order outweighed the prejudice to the relevant person. In deciding whether the second condition was met, the tribunal was directed by para 21(4) to have regard to the public interest in access to a choice of high quality electronic communication services.
The only rights which the claimants sought at this stage were to allow them to enter the defendant’s premises and pass through them to gain access to the flat roof of the building. The rights were requested for a limited window of time and would be exercised on notice to the defendant. There was no question at this stage of the claimants installing apparatus or having any permanent presence on the roof of the building. They said that any prejudice caused to the defendant would arise simply from the inconvenience of having to provide access and, if necessary, accompany and supervise their contractors, all of which could be adequately compensated by a payment of money.
(3) Mobile telecommunications were an important service on which social and commercial life had become increasingly dependent, and the Code treated their maintenance as being in the public interest. The tribunal therefore took seriously the needs of operators to have access to sites belonging to third parties since, without it, the necessary preliminary exercise of assessing potential new sites for their suitability would not be possible. Whether the building was technically suitable or not, was a matter for the operator. The tribunal’s task was to balance the public interest and the prejudice to the site provider as para 21 required. In making that comparison, the tribunal had to keep in mind the limited extent of the rights sought. Any decision the tribunal made about access for the MSV to survey the premises should not be taken as prejudging the issues arising if the claimants subsequently sought permanent rights to install apparatus on the roof of the building. The standard of proof would be different in any para 20 application. More extensive rights would also be in issue and the defendant’s concerns were likely to become even more acute.
(4) On the evidence, it did not seem likely that the limited access proposed by the claimants would impose on the defendant a burden of supervision which would be incapable of being measured in financial terms. The first para 21 condition required the site provider to demonstrate that prejudice would be caused to them if the tribunal made the order. The tribunal was satisfied that the claimants had made out a good arguable case that both the para 21 conditions were met. Moreover, there was nothing to justify the tribunal refusing to exercise its discretion to impose an agreement permitting access for an MSV. Telecommunications operators regularly had access to extremely sensitive buildings around Central London. It was not something that was impossible to achieve but required co-operation between operators and site providers whose security concerns needed to be taken seriously.
Kester Lees (instructed by Winckworth Sherwood LLP) appeared for the claimants; Mischa Balen (instructed by TfL Legal) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of EE Ltd and another v London Underground Ltd
