The first substantive decision under the new Electronic Communications Code (the ‘Code’) was given by the Upper Tribunal on 30 October 2018 and it’s not good news for landowners. This judgment confirms that any ambiguity in the Code’s wording will be resolved firmly in favour of operators delivering electronic communications.

We now live in an age where it is assumed that it is in the public interest to have a choice of high quality electronic communications services – amusingly referred to by the claimant’s counsel as the ‘human right of mobile telephony’.

The case was a stark warning for landowners that Code agreements don’t only come about between willing parties – the Tribunal may impose agreements by which unwilling landowners may be compelled to grant Code rights to operators.

Here, the winning operator was Cornerstone Telecommunications Infrastructure Limited (‘Cornerstone’). At this stage, all Cornerstone wanted to do was have a look to see if the University of London (‘University’) building would be a good place to install new telecommunications apparatus. However, the University was loath even to let Cornerstone get its foot in the door.

Cornerstone applied to the Tribunal to compel the University to grant it interim rights of access under the Code.

The Upper Tribunal clarified that the Code does indeed confer power on it to compel a landowner to grant interim rights to an operator for preliminary investigations. The only bit of good news is that interim rights do not carry any right of statutory continuation.

Cornerstone needed only to demonstrate ‘a good arguable case’ (i.e. a lower standard than for permanent Code agreements) that it could satisfy the two-limbed test under the Code for the imposition of interim rights of access. The two limbs are:

  • can the prejudice that Cornerstone’s access causes to the University be compensated adequately by money; and
  • was there a public benefit likely to result in the making of the order.

In applying the first limb, the Tribunal held that allowing Cornerstone access to the University’s building to carry out non-intrusive surveys could clearly be compensated by money.

It follows that as there is only a minor prejudice being caused, the level of public benefit required to satisfy the second limb needed only to be relatively modest to succeed. Loss of capacity and coverage on a neighbouring site was held to be sufficient to discharge this limb.

Developers should note that the Tribunal may not impose such an agreement if the landowner intends to develop the land to which the Code right would relate, but the level of intention required has yet to be tested. It is not yet known whether the tests generated from years of case law under Landlord and Tenant Act 1954 will apply in the same way here.

Leaving would-be developers aside, it is hard to conceive of a situation in which the first limb of the test would not be met – if redevelopment is removed from the equation, perhaps all other inconveniences can be compensated by money. If access to electronic communications is to be viewed as akin to a ‘human right’, the interests of landowners may very rarely outweigh this public benefit and landowners may be better off working with operators to secure agreements mutually beneficial for themselves, the operators and the rest of us.