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Access Rights to Telecoms Sites – Lexology

Access Rights to Telecoms Sites – Lexology

CTIL v University of London [2018]

The new Electronic Communications Code (“Code”) came into force on 28 December 2017 with its aim being to update telecommunications operators statutory rights to enable the installation, maintenance and use of telecoms equipment in order to operate their networks or provide an infrastructure network.

Much of the drafting contained within the Code has left some ambiguity on how it will operate in practice with the first substantive decision on the Code being CTIL v University of London [2018] UKUT 356.

The case concerned operators’ interim access rights at sites under the Code and the Upper Tribunal’s (“Tribunal”) ability to impose an agreement for access where terms cannot be agreed with a site owner. An issue for operators of telecommunication services is that due to the perceived stringent nature on site owners of the Code provisions, site owners are often reluctant to allow operators to install equipment on their land and in this case, even grant access to operators for the carrying out of surveys to assess the suitability of sites.

In this instance the operator, CTIL, believed that the most suitable site for a new telecoms mast in the Paddington area of London was a building owned by the University of London. CTIL approached the University and asked for permission to survey the rooftop, but the University refused permission. CTIL therefore served a notice under Paragraph 26 of the Code seeking interim Code Rights.

The first question before the Tribunal was whether interim access (under Paragraph 26) for the purposes of a survey was a right granted to operators pursuant to the Code i.e. a “Code Right”. The Tribunal held that the Code Rights should be interpreted widely in line with the overall objective of the Code, that is to enable easier and faster installation of telecommunications infrastructure. As such the decision was clear that interim access for the purpose of surveying a site to assess its suitability was a Code Right, within either paragraph 3(a) or 3(d) of the Code:

Paragraph 3: ‘a “code right” … is a right:

(a) to install electronic communications apparatus on, under or over the land,

(d) 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’

Amongst other reasons, such an approach was also supported by the need to avoid a situation where the Code was undermined by allowing landowners to ransom access to sites.

The University contested a second point that if an operator intended to seek an agreement for interim rights, then this needed to be twinned with an application for permanent Code Rights as when deciding whether to grant interim rights paragraph 26 refers to a lower standard of proof – that being the operator has a “good and arguable” case. The University contended this presented a way around the more stringent test for permanent Code Rights.

However, the Tribunal was satisfied after analysing the Code that there was no condition that an application for interim rights must be twinned with or be a precursor to an application for permanent rights.

This decision is welcome clarification on the provisions of the Code. It bolsters the operators’ position when looking to rollout and maintain their networks and demonstrates that the Tribunal seem minded to view drafting within the Code with a broad lense that seeks to achieve the purpose of the Code – making installation and maintenance of telecommunications networks for operators more straightforward.

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