A new Electronic Communications Code 2017 came into force on 28 December 2017. It sets out the basis on which operators can install and maintain electronic communications apparatus on, over and under land. In The University of London v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 2075; [2019] PLSCS 226 the Court of Appeal had to decide whether the new Code permits an operator to carry out a survey to determine whether a building is actually suitable for the installation of telecommunications apparatus in the first place.
The University of London had refused the operator’s request for access. But the Upper Tribunal ruled that the right conferred by paragraph 3(a) of the Code (to install apparatus) or, failing that, by paragraph 3(d) (to carry out any works on land for or in connection with the installation of apparatus), must include a right to enter on to land to undertake preparatory surveys. If this were not the case, the ransom position that site owners would enjoy as against operators without rights to carry out surveys would defeat the intention of Parliament and subvert the operation of the Code.
The University took the case to appeal, arguing that the right that the operator was seeking was not a right that was listed in the Code. It argued that a right to install apparatus is different from a right to survey a site to decide whether it is suitable for installing it. Furthermore, paragraph 3 (c) of the Code confers rights “to inspect … electronic communications apparatus” (rather than land itself), and paragraph 3 (f) confers rights “to enter the land to inspect … any electronic communications apparatus” (as opposed to the land itself). The University argued that both paragraphs presuppose that apparatus has already been installed on land – and do not contemplate an inspection to decide whether or not to install apparatus in the first place.
