At the end of 2017, the rules governing telecoms operators changed. Among other things, the new rules set out the conditions on which a telecoms operator can take access to a piece of land even when the occupier of the land does not agree.
How the new rules will be enforced in practice is to some extent a matter for the courts to decide. As with any new legislation, it often takes some time before any cases come before the court, and it was only late in 2018 when the first reported case on the topic came out.
The case concerned a telecoms operator which wanted to survey a particular building near Paddington Station in central London. The operator wanted to see if the building was suitable for hosting a telecoms mast. The owner of the building did not want a telecoms mast on its building and refused permission for the survey.
The telecoms operator sent the owner a few aggresive letters, which unsurprisingly did not result in agreement being reached. The telecoms operator then made an application to the relevant tribunal to force the owner to allow them compulsory access to perform the survey. The owner opposed the application.
Determination of the dispute came down to how the judge interpreted the legislation, and whether he felt there were any circumstances that meant the operator should not have compulsory access.
The tribunal ruled that the legislation did allow the operator to have compulsory access to carry out a survey. It found that the generalised language of the statute indicated that parliament’s intention was to facilitate the development of the telecoms network generally, and that would include allowing operators to carry out surveys. That finding came despite there being other legislation under which the operator could have sought access.
The next questions were whether granting the access could be adequately compensated by money, and if the public interest in developing the telecoms network outweighed the prejudice caused to the individual site owner. The owner argued that there were other sites the operator could use, but the judge found that was not relevant and the tribunal answered both questions with: yes.
The judge also found that granting the survey access was in part a matter for the tribunal’s discretion. The owner argued that the operator’s “bad attitude” and its failure to abide by the relevant regulator’s code of practice meant access should not be granted by the tribunal. The judge was not persuaded that these factors were sufficient to deny the operator access, and the tribunal therefore granted the order allowing the operator to carry out a survey.
The case is significant as being the first under the new telecoms code. It will likely be seen as a test case not just for situations where an operator wants to carry out a survey without permission, but where it wants to gain permanent access to a site. This is particularly noteworthy because the judge was persuaded that the public benefit in developing the telecoms network is an important factor in interpreting the legislation. That tends to indicate that the tribunal will be slow to deny operators access unless there are compelling reasons not to. Having said that, the court gave some hope to landowners in acknowledging there is a discretionary element to granting orders and considering the more general circumstances of the case before doing so.
The case is Cornerstone Telecommunications Infrastructure Limited v The University of London [2018] UKUT 0356 (LC).
