In a decision that will be welcome news for telecoms operators and a disappointment for landowners, the Court of Appeal has rejected the appeal by the University of London. The decision is important because the roll out of 5G has seen operators sending out many requests to conduct surveys of sites to assess whether sites are suitable for the installation of telecommunications equipment. This case relates to a request by the operator, Cornerstone, for access to a rooftop in Paddington in order to undertake a survey to see whether it is an appropriate location for the installation of telecoms equipment to replace a site that Cornerstone lost for redevelopment.
The University of London had appealed the Upper Tribunal's decision that a right to survey was a "Code Right" and that the right to survey could be sought on an interim basis, without also seeking a permanent right to install.
The Telecoms Code sets out a list of rights that are "Code Rights", which the tribunal can order a landowner to allow an operator to exercise over their land, if agreement can't be reached. Crucially for this case, the list doesn't include a right of entry to see whether a site is appropriate for subsequent installation. The tribunal held that a right to install included all necessary steps to install and that a survey was a necessary step given the commercial cost of installing telecoms equipment. The Court of Appeal considered that "doubtful" and instead considered whether a different Code Right, the right to carry out works for or in connection with the installation of land, would cover the right to survey to assess suitability. The Court of Appeal said that when the legislation uses an imprecise word, it is open to the court to place a strong reliance on the legislative purpose underpinning the legislation. So the right to survey is a Code Right, not (as the Tribunal had found) because it is implicitly included within the right to install, but because a survey falls within the scope of "works" even if the survey is non-intrusive.
The other question in the appeal is whether it was necessary to have a substantive application for the right to install, in order to apply for interim rights (rather like you need a substantive claim in order to seek an interim injunction). This is important because the test to obtain interim rights is less stringent than for permanent rights. The court held that you do not need the interim application to be parasitic in this way.
The fact that interim rights can be sought (and granted) for an indefinite period of time leaves open a potential loophole so that operators might seek interim rights to survey and install, on sites where they feel they have a weaker argument, even though the downside for operators is that they don't gain security of tenure for interim rights. Maybe landowners will prefer interim rights to be granted, as a way of avoiding the restrictive regime for removing equipment from potential development sites. Whether that falls foul of the anti-avoidance provisions is yet to be determined.
EE Limited and Hutchinson 3G UK Limited v The Mayor and Burgesses of the London Borough of Islington [2019] UKUT 0053 (LC) see here for our earlier article relating to the Upper Tribunal decision.
