Cornerstone Telecommunications Infrastructure Ltd v University of London

Telecommunications – Electronic Communications Code – Survey – Access to building – Appellant operator challenging decision of Upper Tribunal that respondent operator entitled to interim code rights – Whether Upper Tribunal having power to impose on occupier of building agreement permitting access by operator to determine suitability for installation of electronic communications apparatus – Whether right to seek interim code rights free standing and time limited – Appeal dismissed The respondent company, which installed and maintained apparatus for electronic communications networks, wanted access to the roof of a building situated opposite Paddington station, which provided accommodation for university students. The respondent believed that the building was likely to be the most suitable venue in the locality to site some apparatus and wanted to carry out a survey to establish whether the site was in fact suitable. Access was likely to be required on three or four occasions in one 28-day period. The respondent gave notice to the appellant building owner, under para 26 of the Electronic Communications Code in Schedule 3A to the Communications Act 2003, seeking interim code rights to carry out a survey inspection and investigation known as a “multi-skilled visit” (MSV). When the appellant refused access, the respondent applied to the Upper Tribunal for an order conferring upon it: the ability to enter and inspect the land so as to verify its assessment that the land is suitable for the installation and operation of electronic communications equipment apparatus and provide permanent and consistent network capacity and mobile phone coverage in the area of Paddington Station”. At that stage the respondent sought no permanent rights to install apparatus. The tribunal held that it had power to impose an access agreement for that purpose. Such a right was a code right within para 3 of the Code, as either a right “to install electronic communications apparatus on, under or over the land” within para 3(a) or a right “to carry out any works … for or in connection with the installation of electronic communications apparatus on, under or over the land …” within para 3(d). Further, the right sought was an interim code right within para 26, and the respondent was entitled to seek an interim right in a free-standing application: [2018] UKUT 356 (LC); [2018] PLSCS 188. The appellant challenged those conclusions. The issues were: (i) whether the tribunal had power under the Code to impose on the occupier of a building an agreement permitting access by an operator to determine whether it was suitable for the installation of electronic communications apparatus; and (ii) whether the right to seek interim code rights was free standing and time limited. Held: The appeal was dismissed. (1) The appellant sought to argue that the meaning of “install” did not include a right of access to see whether land was suitable for the installation of electronic communications equipment. The context in the present case was a Code designed to facilitate the provision of electronic communications apparatus in the public interest. It was not necessary for the “works” in para 3(d) to amount to the installation of electronic communications equipment because that right was already encompassed within para 3(a); the right under para 3(d) had to be wider. Nor was it necessary that the works be “for” the installation of such equipment, because the Code used the phrase “for or in connection with”. It was enough that they were “in connection” with that installation. The width of the definition was emphasised by the phrase “any works”. Where the legislation used an imprecise word, a court was entitled to place strong reliance on the legislative purpose underpinning the legislation: that was undoubtedly to facilitate the improvement of electronic communications throughout the country and could not be sensibly achieved unless operators could acquire the right to assess the suitability of potential sites. Therefore, the operations necessary to carry out an MSV, even if non-intrusive, amounted to “works” for the purpose of the Code. In any event, something might be “connected with” a future event even if it was uncertain whether that event would ever happen. Accordingly, depending on context, something might be “in connection with” a future uncertain event. The policy underlying the Code was such that Parliament had to be taken to have intended that national coverage by electronic communications equipment would be facilitated by code rights and that apparatus would be installed on suitable sites; and to have known that an assessment of suitability would be required before a final decision on installation was made. The legislative context pointed strongly to the conclusion that an MSV was within the phrase “any works on the land for or in connection with the installation of electronic communications apparatus” whether or not a final decision to install electronic communications apparatus had yet been made. Therefore, the respondent was seeking a code right within para 3(d). (2) The list of code rights in para 3 was a list of the various rights that an operator might chose to have. Therefore, it was open to an operator to limit its request to only one or some of the list of code rights. If the right to carry out an MSV was a code right, it followed that an operator might ask the occupier to confer that right alone under para 9 of the Code. If the occupier refused to do so, the operator might apply to the Upper Tribunal under para 20 for the imposition of an agreement to that effect. However, an application under para 26 for an interim right to carry out the visit was likely to be cheaper for all parties than an application under para 20 because it was generally determined summarily on the papers, whereas a full hearing under para 20 was likely to involve oral and expert evidence. Further, if the MSV revealed that the site was not suitable, the operator had no further need for further code rights in an agreement imposed under para 20. The respondent’s stand-alone application was within the literal wording of para 26 and there was no purposive reason to give it any other meaning than its literal meaning and it was not a necessary part of an application under para 26 that it be accompanied by an application under para 20. A free-standing application under para 26 was permitted by the Code. Wayne Clark and Jonathan Wills (instructed by Eversheds Sutherland International LLP) appeared for the appellant; Jonathan Seitler QC and Oliver Radley-Gardner (instructed by DAC Beachcroft LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Cornerstone Telecommunications Infrastructure Ltd v University of London