The Electronic Communications Code (the Code) regulates the legal relationship between telecoms operators and landowners on whose land telecommunications equipment is to be placed.
It gives operators far reaching powers to seek out locations and install telecoms equipment in order to meet the increasing demand for high-quality electronic communications services whilst at the same time providing some protection for landowners. These rights can be exercised with the agreement of the land occupier or by an order of the Upper Tribunal (Lands Chamber) (the UT).
Paragraph 26 of the Code makes provision for interim Code rights to be conferred allowing the operator to get onto the land quickly while the terms of a Code agreement are negotiated. This paragraph is also often relied upon by operators to carry out an initial inspection of the property to assess its suitability as a telecoms site, known as a “multi-skilled visit” or MSV. This survey may involve intrusive works or it may be a simple visual inspection.
In the case of Cornerstone Telecommunications Infrastructure Limited v The Mayor and Burgesses of the London Borough of Hackney [2022] the parties could not agree all the terms of the interim Code agreement governing an MSV at the building in question, Tradescant House, a residential building in a housing estate in E9. Paragraph 23 of the Code gives the UT the power to impose such terms as the UT considers appropriate, taking into account that these should cause the least possible loss or damage to owners and occupiers of and visitors to the land.
As part of the interim Code agreement, the operator was to prepare a Risk Assessment and Method Statement (RAMS) for both the MSV and an asbestos survey. The main focus of this case was on what the UT called the “approval condition”, namely that the visit should not take place until the operator's RAMS for the visit were approved by the site provider, with approval not to be unreasonably withheld. As the judgment summed up rather succinctly, the main disagreement was over "who has the last word about the adequacy of the RAMS and, therefore, about whether the visit can go ahead?"
The parties had a common goal, safety, but the site provider was concerned about potential liability under Sections 3 and 4 of the Health and Safety at Work Act 1974 which create duties, the breach of which can give rise to criminal liability. In this case, these duties extended beyond being owed to employees and tenants but also to visitors to the premises of the site provider's "undertaking" which quite clearly included the management of Tradescant House.
The operator's focus, on the other hand, was control of its own operations. It was also keen to avoid a situation where any right given to the site provider to approve the RAMS was used as an obstacle to the MSV taking place.
The UT's decision
The "approval condition" was imposed meaning that for the MSV to take place, the site provider's approval of the RAMS would be required. The UT gave two practical reasons for its decision here:
The first was that such a condition is appropriate where the site provider is much better placed to assess the risks involved in carrying out the MSV on the site. Here, the operator's contractor who was to carry out the MSV had not previously visited the site and would be unaware of many of the actual site-specific risks. The UT held that "the position would be very different if this were an established site being operated by the operator so that the operator was familiar with the building and the site-specific hazards. It would be also be very different if the operator was visiting in order to install or maintain its apparatus". In this case, neither was true.
The second reason was that, in the event that there was a disagreement about the safety of carrying out the MSV, inclusion of the approval condition would be less likely to cause loss and damage to the site provider given that the result of any such disagreement would be that the MSV would simply not go ahead. But in a situation where the site provider was unable to refuse access where it considered the risks too great, the consequences could be far worse – risk of harm to persons or cost and stress of litigation for the site provider.
The UT dealt with the question of the site provider using the approval condition as an obstacle to the MSV by pointing out that it was qualified by the fact that the operator could seek to enforce the agreement if it considered that consent was being unreasonably withheld.
The UT also addressed the question of whether a previous "MSV agreement" entered into directly between the parties in 2020 could and should have any influence on the terms of the new interim code agreement that the UT was being asked to determine in this case. The UT made clear that the contents of previous agreements and consent orders had no bearing on the outcome of a referral. The UT recognised that parties reach agreements for all manner of reasons and this does not influence the UT's decision which will be made on the basis of what the Code provides. This means that operators and site providers can reach agreements on whatever basis is convenient to them without fear that they have then compromised their position when terms are in dispute before the UT.
The Judge also expressed dismay that points of principle had been insisted upon in the context of a brief and straightforward MSV and the resulting "eye-watering" cost, and hope that if an intrusive MSV was to be required in the future it could be agreed directly between the parties.
