Cornerstone Telecommunications Infrastructure v St Martins Property Investments and another [2021] UKUT 262 (LC)

Summary

A decision from the Upper Tribunal (Lands Chamber) has clarified terms of access for an operator seeking to assess a site's suitability for the installation of electronic communications apparatus.

The facts

In this claim, Cornerstone (the operator) sought an interim order under paragraph 26 of the Electronic Communications Code (the Code), granting it access to 1 London Bridge, a valuable building of a high specification in central London. 

The interim order sought by the operator would allow it to assess the rooftop to consider its suitability as a mast site by carrying out a ‘multi skilled visit’ (MSV). This included 'destructive investigative works' involving taking up parts of the roof to investigate its structure and suitability for the apparatus. 

The occupier opposed access on the basis that the roof of 1 London Bridge was said to be coated with a particular material which would be difficult to reinstate. The occupier also did not believe the rooftop would be a suitable site and so should not be subjected to intrusive works until its suitability had been assessed by other means.

The occupier also wanted the operator to pay for its telecommunications agent to supervise access to the building by the operator’s contractors. 

The Tribunal's decision 

The Tribunal held that it would not allow the operator to carry out the intrusive works and found that non-invasive, visual inspections should be undertaken in the first instance. If it is necessary for the operator to come back to the Tribunal seeking additional rights following the initial MSV, it could do then do so. 

The Tribunal was not prepared to order the operator to reimburse the cost of a specialist telecommunications agent supervising access, noting that where non-intrusive investigations are being undertaken, operators should not be expected to pay for professional supervision. 

Concerning costs, the Tribunal awarded the occupier its full transactional costs but only awarded a small proportion of its litigation costs (only £12,500 against the £82,500 claimed), despite the occupier's success on the issue of intrusive works. The Tribunal took the opportunity to reiterate the warning given in CTIL v Central Saint Giles General Partner Limited [2019] UKUT 183 (LC) that the Code is intended to facilitate the provision of telecommunications services without delay and at limited cost, and parties should ensure that costs do not become disproportionate to the matter at hand.

Our comment

The qualifying test for acquiring interim Code rights is not as difficult to establish as the test which operators must satisfy to acquire ‘permanent’ rights – only a ‘good arguable case’ must be made out. It is therefore difficult for a prospective site provider to resist an MSV if such interim rights are sought by an operator.

This case confirms, that site providers should not be dissuaded from raising any legitimate concerns about the terms and extent of an operator's request.