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A new, highly-anticipated electronic communications code came into effect on 28 December 2017, replacing the previous longstanding code which was widely regarded to be outdated and unsatisfactory.

The new code, similar to the old, sets out a framework under which telecoms operators are afforded various rights to install, inspect and maintain electronic communications apparatus on land. The code applies to operators who are registered and approved by Ofcom, and who predominantly operate telephone networks and broadband internet.

Surprisingly, throughout the 30 year history of the previous code, only a handful of cases ever reached the doors of the courts and yet since December 2017, the Lands Chamber of the Upper Tribunal (which has jurisdiction to deal with cases under the new Code) has already been asked to determine two disputes concerning the imposition of code rights on landowners. This may suggest that there remains as much potential for disagreement over the competing interests of landowners and operators as there was before.

CTIL v University of London [2018] UKUT 356 (LC)

In the first substantive case under the new code, CTIL, the joint venture between Vodafone and Telefonica O2, had approached the University of London for permission to undertake a survey on the rooftop of one of its student accommodation buildings, together with other non-intrusive investigations in order to assess the site’s suitability for the installation of a new telecoms mast. After the University refused permission, CTIL made an application to court for a determination of two issues:

(1) Whether the right of access for surveying purposes qualified as a “Code right” under the new Code

(2) Whether it was able to apply for interim rights to install and operate the apparatus from the rooftop.

The decision offers a useful insight into the Tribunal’s approach to determining disputes between landowners and operators, and its application of the relevant principles and considerations. Finding in favour of CTIL, the Tribunal held that preparatory surveys and associated right of access fell within the ambit of the operators rights under paragraph three of the new code to “install apparatus on, under or over the land”.

The Tribunal’s decision was heavily influenced by policy and the overarching purpose of the new code, which is to facilitate the fast and effective development of telecommunications networks. The operator’s rights of access and inspection clearly trumped the landowner’s private property rights in this case.

The Tribunal also held that CTIL was entitled to make a standalone application under paragraph 26 of the new code for the ability to install and operate apparatus on land for a temporary period of time, thereby imposing an agreement on the University allowing CTIL to access the rooftop and carry out its inspections.

Our expert view

This noteworthy case is likely to sit uncomfortably with many landowners, who may suddenly find themselves in the position of having to allow unwelcome operators onto their property for purposes entirely unconnected with their business. On the other hand, operators will welcome the decision which illustrates the tribunal’s willingness to afford operators the necessary rights to build and develop their infrastructure in order to deliver effective networks for the benefit of the wider public.

EE Ltd & H3G UK Ltd v London Borough of Islington [2018] UKUT 0361

The second case involves consideration of similar “interim” rights which EE and Three sought to claim over residential premises in Islington, London. The operators’ existing site was earmarked for redevelopment, so they sought interim rights to temporarily relocate their apparatus to neighbouring premises.

Negotiations between the proposed landlord and the operators had progressed well but when they were unable to reach agreement on all of the new lease terms, the operators applied to the Tribunal for the grant of interim rights to install and use their apparatus on the new site whilst the redevelopment of their previous site took place.

The Tribunal granted the operators the interim rights, but made them conditional on their existing landlord obtaining planning permission for redevelopment. The Tribunal’s rationale was that without planning permission, the works could not take place, so there’d be no need for the operators to relocate.

In considering whether to grant the interim rights, the Tribunal considered the tests laid down under paragraph 21 of the new code:

• Whether the prejudice caused by the grant of the rights could be compensated by money

• Whether the public benefit outweighed the prejudice caused to the landowner.

Interestingly, the Tribunal considered that the mere fact that the parties had previously been negotiating a financial payment for the imposition of the rights in favour of the operators indicated that the prejudice to the landowner was capable of being compensated by money. The Tribunal ordered that the operators pay the landlord £2,551 per annum in compensation, significantly less than the £12,500 per annum sought by the landowner, suggesting that landowners should not expect generous monetary sums to be awarded in their favour by way of compensation for code rights being imposed on their property.

The Tribunal also stated “the whole premise of the Code is that there is a need, in the public interest, to impose agreements on unwilling parties in return for consideration which parliament has deemed to be adequate notwithstanding that it may be significantly lower than would result from unrestricted commercial negotiation.”

Our expert view

Again, the message stemming from the Tribunal’s reasoning in this case is that the public interest which arises from the grant of code rights will likely be construed in favour of the operators rather than preserving private property rights.

Forthcoming legislative developments

Although the new code is only now approaching its first anniversary, being the first significant overhaul of the law in this area for over 30 years, the legal landscape in terms of telecommunications is continuing to evolve even further.

The government is already consulting on possible amendments to the new code, particularly in the context of tenants looking to develop digital infrastructure within their premises with the aim of landlords and operators agreeing suitable terms without applications having to be made to the tribunal for the grant of necessary code rights.

Further afield, there are plans within the European Union to introduce a new directive establishing an EU wide telecommunications code. The European code is intended to synchronize laws across the European Union as they relate to telecommunications apparatus and infrastructure. The new directive which has met with approval from the European Council is set to be introduced in 2020.

Whether it ever has effect in UK law remains to be seen, but the message which stems loud and clear from the above developments in both case law and legislation is that laws are being developed and interpreted both nationally and abroad to facilitate the digital infrastructure of the future age... which may help the UK’s introduction of 5G from 2020…

For further information, speak to our solicitor and real estate expert Ben Gildea.

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Winter 2018