In the first substantive decision since the implementation of the new Electronic Communications Code (the "Code"), the Upper Tribunal has held that operators have the right to access sites for the purpose of a preliminary assessment of suitability, and may apply for interim agreements for this purpose without also seeking a permanent agreement to conduct works.
Cornerstone Telecommunications Infrastructure Ltd (a Telefonica UK Ltd/Vodafone Ltd JV) asked the University of London for repeated access to one of its intercollegiate halls in order to carry out a survey and other investigations to establish the site's suitability for new electronic communications apparatus.
The University denied Cornerstone's request, citing bad experiences with other operators, and during the hearing its barrister complained about Cornerstone's "aggressive and uncompromising" conduct in requesting access. The University contended that the Code only conferred a right on operators to conduct works. They said there was no right to apply for an interim agreement to merely inspect buildings or conduct surveys, particularly given the less stringent requirements in relation to interim agreements, which has the potential to give rise to unfair and invasive access by operators, with no intention to apply for permanent rights.
The Tribunal held that operators do have the right to apply for interim agreements for the purpose of conducting preparatory inspections, whether or not the site in question is ultimately found to be suitable for the installation of apparatus.
As the applicant for an interim agreement, Cornerstone was only obliged to show a "good, arguable case" (rather than prove on the balance of probability) that the inconvenience suffered by the landowner could be compensated by money, and that the public benefit outweighs this inconvenience. The Tribunal found that both conditions had been met (with apparent ease).
It was noted that the operator's "rough wooing" in demanding access to the site did not influence the Tribunal's judgment in this matter.
Given how crucial high quality telecoms services are for businesses and individuals alike, and operators' deep pockets, it is hard to imagine a scenario in which the Tribunal will deny telecoms operators an interim agreement to access sites for inspection.
The first substantive case under the new Code seems to have left landowners with little ammunition to prevent operators entering privately owned land, which may further increase the perceived rift between landowners and operators. For more on this, see our recent article here.