We previously reported on a case dealing with interim rights of access for operators under paragraph 26 of the Electronic Communications Code.
On 8 October 2021, the Upper Tribunal handed down judgment in a further case which has expanded upon and clarified the extent of these interim rights.
Despite Cornerstone Telecommunications Infrastructure Limited (CTIL) maintaining that their contractors should be granted access to the roof of the building for a multi-skilled visit (MSV) to assess the suitability of the site for telecommunications apparatus, an order was granted in favour of the site provider who successfully argued that CTIL did not have the right to carry out the intended "investigative works".
The decision has implications for site providers facing requests from operators for interim access Code rights to assess the suitability of the site for telecommunications apparatus and highlights that the scope of any proposed works needs to be properly defined. Additionally, factors such as the ability to reinstate a roof following intrusive works may be taken into account by the Upper Tribunal (UT).
When will interim rights be granted?
Interim rights will be granted if there is a "good and arguable" case that the conditions under paragraph 21 of the Code can be made out. In particular, an operator must show that, on the balance of probability (1) any prejudice caused to the relevant person is capable of being adequately compensated by money and (2) that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person (and the Tribunal is to have regard to the public interest in access to a choice of high quality electronic communication services).
Facts
Here, CTIL sought an order allowing their contractors to access the roof of 1 London Bridge for a MSV to assess the suitability of the building by carrying out "investigative works". These proposed works included removing parts of the roof structure to assess whether it was suitable to host the proposed equipment.
St Martins Property Investments Limited – the first respondent - holds a head lease of the building, which is sub-let to a range of occupational tenants. The City of London Corporation – the second respondent – owns the freehold of this prominent building which is situated at the southern end of London Bridge immediately adjoining the river.
While both respondents were, in principle, willing to allow CTIL access to the roof, CTIL did not require the freeholder's permission to carry out the proposed surveys. The issues in the case therefore fell between CTIL and the first respondent and revolved around the terms of any access, including primarily the extent to which "investigative works" should be allowed.
1 London Bridge had been identified by CTIL as a replacement site intended to serve the approaches to London Bridge Station, Borough Market and local hospitals.
What did the court decide?
The UT criticised CTIL's use of the term "investigative works", indicating that this drafting was circular and "entirely open ended" as the term was defined as being the works to be undertaken pursuant to section 7 but that section provided no explanation or further detail on those works. The UT agreed with the site provider that it gave rise to a legitimate concern that CTIL was asking for unrestricted rights to perform undefined works.
The UT found that, whilst CTIL did have the right to conduct some investigative works, it did not have the right to carry out intrusive works at this stage. Instead, it suggested that further works of a more intrusive nature might be considered acceptable once CTIL had carried out any initial, non-intrusive, works and established the suitability of the building. It reiterated, however, that the scope and specification of any further works would have to be properly set out.
It is also worth noting that the UT gave particular weight to 1 London Bridge being a valuable high quality building with particular sensitivities, noting that "there are no doubt buildings of no particular architectural or engineering merit or complexity where there is little risk to the integrity of the building from relatively modest destructive investigations" but that it "was not satisfied that this building falls into that category".
Here, the surface of the roof was said to be coated in a particular material that would be very difficult to reinstate to its original condition if damaged.
Guidance was also given by the UT on the extent of an operator's liability to pay a site provider's expenses, including its reasonable legal and valuation expenses in accordance with paragraph 84(2)(a) of the Code. Here, CTIL argued that the site provider's legal fees of £11,000 for the transactional work of advising on and negotiating the agreement were excessive. The site provider also sought £875 for advice from a telecoms agent. CTIL had offered a £1,500 contribution towards those total costs. Noting the complexity of the form of agreement produced on CTIL's behalf, the UT indicated that CTIL should not be surprised that negotiations were not straightforward. Whilst the UT was careful to note that its decision on costs should not be regarded as setting a norm and turns on the facts of the case, it indicated that:
"the notion that an operator should be required only to make a contribution towards the legal expenses incurred by a site provider, and that the site provider should thereby be left out of pocket, is flawed. The site provider is entitled to recoup its reasonable legal expenses – all of them – and in this case, on the material before the Tribunal, those reasonable legal expenses are £11,000".
The parties' litigation costs relating to the Tribunal process were considered and dealt with by the UT separately. Ultimately, CTIL was required to pay the first respondent's costs, assessed at £12,500 and the second respondent's at £1,500 on top of the expenses awarded in accordance with paragraph 84(2)(a) of the Code. The UT indicated that the sums awarded relating to litigation costs reflect "both the extent of the respondent's success and the proportionate cost of achieving it". The UT also reiterated that "the Tribunal wishes it to be known by other parties who refuse access to their land or buildings for surveys that, whatever the outcome, they cannot expect to recover costs on the scale incurred by the parties in the proceedings".
What this means for you
This decision will provide clarity for practitioners advising site providers and reassurance that unrestricted rights to perform undefined works will not be ordered. Site providers are entitled to require that the scope of any proposed works to be carried out during an MSV is properly defined and factors such as the ability to reinstate a roof following intrusive works is a relevant and legitimate concern which in some circumstances may be sufficient to justify a refusal to grant certain interim rights.
