New ruling on surveying sites for electronic communications apparatus installation - A clearer signal?

Real Estate trainee, Elliot Cuozzo, considers a recent case.

The Electronic Communications Code (Code) confers rights on operators to install and maintain electronic communications apparatus (ECA). Does the Code give an operator the right to carry out a survey of a site, known as multi-skilled visit (MSV), to establish whether the potential site is suitable for installing ECA?

This issue came to a head in the recent Court of Appeal case of University of London v Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 2075.

The facts 

The operator, Cornerstone Telecommunications Infrastructure Limited (Cornerstone), was looking for a suitable site to install ECA and had identified a site owned by the University of London (the University). Cornerstone served notice on the University under paragraph 26 of the Code, requesting an interim right of access to the roof of one of the University’s buildings for a MSV in order to establish whether ECA could be installed on it. Cornerstone was not seeking a permanent right to install ECA at this stage.

The University refused Cornerstone’s request for access. It argued that a MSV was not a right listed in paragraph 3 of the Code.

Decision 

The Court of Appeal dismissed the University’s appeal.

Paragraph 3(d) of the Code grants a right “to carry out any works on the land for or in connection with the installation of electronic communications apparatus on, under or over the land or elsewhere”. The word ‘works’ in this paragraph could be interpreted widely enough to include a MSV and covered surveys involving intrusive and non-intrusive work. A MSV is a first step in a series of works necessary for the installation of ECA.

The Court of Appeal also confirmed that an application under paragraph 26 of the Code could be a free-standing application for interim rights. It did not require a supportive application for full rights under paragraph 20 of the Code.

Implications 

The Court of Appeal’s ruling will be welcomed by operators. An application under paragraph 26 of the Code is less expensive to make than an application for full Code rights under paragraph 20. The former is not dependant on the latter, which means operators can make free-standing applications for interim rights without also seeking permanent rights to install ECA.

Landowners will have to keep in mind that operators have a free-standing right to carry out preparatory surveys on their land.