Cornerstone Telecommunications Infrastructure Ltd v University of London

Telecommunications – Electronic Communications Code – Survey – Access to building – Whether Code rights including rights of access to assess suitability of building for installation of electronic communications apparatus – Whether interim rights to be granted – Claim allowed The claimant company, which installed and maintained apparatus for electronic communications networks, wanted access to the roof of the Lillian Penson Hall in Talbot Square, Paddington, situated opposite Paddington station, which provided accommodation for 300 students.The claimant 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 as suitable as its desk top assessments suggested. Access was likely to be required on three or four occasions in one 28-day period. The defendant owner of the building did not want electronic communications apparatus on its roof and refused the claimant’s requests for access.The claimant asked the Upper Tribunal to impose an agreement for access on the parties under the Electronic Communications Code which came into force on 28 December 2017. At this stage the claimant sought no permanent rights to install apparatus. The tribunal had to determine whether: (i) it had jurisdiction to impose an agreement under para 26 of the Code providing for a right of access to undertake a survey of the roof; (ii) the claimant was entitled to seek an interim Code right under para 26 without at the same time seeking the same or any permanent Code right under para 20; and (iii) the claimant had shown a good arguable case that the conditions in para 21 were satisfied. Held: The claim was allowed. (1) The right conferred by para 3(a) to install apparatus on over or under land had to include a right to enter on the land and to carry out each step required to achieve the permitted installation; in the same way, the taking of other necessary steps had to be included, since otherwise the grant of the right would be illusory. That gave full effect to the language in which the right had been described. The right to “install” was intended to permit an operation involving a series of distinct steps and the single word was sufficient to connote, as a component of the right, each of those steps. No electronic communications apparatus could be installed without some preparatory work, including a “multi skilled visit”, being undertaken. It followed that an agreement conferring the right to install equipment necessarily entitled an operator to undertake preparatory surveys required as a prelude to the installation itself. Such surveys, and a right of access to carry them out, were part of the right “to install” under para 3(a). As for the right to carry out “any works in connection with the installation” under para 3(d), the word “works” more naturally suggested the provision of infrastructure by physical operations, rather than measuring and recording the characteristics of a site. “Works” was a word of imprecise or general meaning and there was no reason to confine its meaning so as to exclude the undertaking of surveys as steps preparatory to installation. “Install” connoted a variety of tasks or works undertaken for the purpose of providing equipment on a site; “works in connection with the installation” connoted a still wider range of activities. Although expressed as separate rights, those paragraphs were intended to be complementary and, between them, to describe all of the steps necessary to the installation of apparatus. Even if the right of access had not been conferred by the express provisions of para 3(a) and para 3(d), it would be implied to render the Code effective. (2) Paragraph 26(1) allowed an operator to apply to the Tribunal for an order conferring Code rights “on an interim basis”. By para 26(2) an order imposed an agreement “on an interim basis” if it provided for the agreement to bind the parties “(a) for the period specified in the order, or (b) until the occurrence of an event specified in the order”. The Tribunal might make such an order “if (and only if) … a notice which complies with paragraph 20(2)” had been given by the operator stating that an agreement was sought on an interim basis. Two further conditions were specified, namely, either (a) that the operator and site owner had agreed to the making of such an order or (b) that the Tribunal was satisfied that the operator had a “good arguable case that the test in para 21 for the making of an order under para 20 is met”.  The Tribunal was not obliged to make the order sought, but it had to exercise its discretion judicially and on a proper consideration of the relevant facts. The fact that a notice complying with para 20(2) had to be served did not import a requirement that permanent rights had to be sought in that notice, or in another served simultaneously. A notice under para 20(2) was a precondition of any application for Code rights, whether permanent, temporary or interim; it was the mechanism for initiating the statutory procedure whatever rights were sought. (3) The test to be applied by the Tribunal in deciding whether to make an order imposing an agreement under para 20 was contained in para 21 which provided that two conditions must first satisfied: (i) the prejudice caused to the relevant person by the order was capable of being adequately compensated by money; and (ii) the public benefit likely to result from the making of the order outweighed the prejudice to the relevant person. In the present case, the claimant had a good arguable case that both conditions were satisfied. The fact that the defendant was able to identify the functions involved and the amount of time its staff would be required to devote to them showed that it was possible to make an informed estimate of how much would be required to compensate the defendant for the diversion of their services. The evidence before the Tribunal was to the effect that that the provision of access to the building for site surveys would be an important first step in replacing lost capacity and improving the quality of the service available to the public. That evidence established the good arguable case required by para 26(3)(b) in relation to the second para 21 condition. Oliver Radley-Gardner (instructed by DAC Beachcroft LLP) appeared for the claimant; Wayne Clark (instructed by Fladgate LLP) appeared for the defendant. Eileen O’Grady, barrister Click here to read transcript: Cornerstone Telecommunications Infrastructure Ltd v University of London