The Electronic Communications Code - Recent Case Review : Part 2

This is the second of three posts reviewing some of the recent cases considering either the Electronic Communications Code (otherwise referred to as "the Code") or issues relevant to the Code. This article looks at two decisions relating to an operator's use of paragraph 26 the Code for short-term access purposes.

  In Cornerstone Telecommunications Infrastructure Limited v University of London, [2020] 1 P & C R 18 Cornerstone were seeking a replacement site for locating electronic communications apparatus. A desk-top exercise had identified a University building as a potential alternative site. The University refused permission to Cornerstone for entry to the roof of the building for a non-intrusive survey to be carried out. Cornerstone served a notice under paragraph 26 of the Code seeking the conferral of interim Code rights to access the site for site visit to survey the building only, although it also reserved the right to seek the conferral of additional full Code rights should the land prove fit for purpose.

  The Court of Appeal upheld the original Upper Tribunal decision that the right sought was a Code right under paragraph 3(d) of the Code, namely a right “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”. A survey visit was “in connection with” the installation of apparatus, even if no decision had been made to proceed with the installation. The next issue was whether an application for interim rights under paragraph 26 of the Code had to be accompanied by an application for full Code rights under paragraph 20. The Court said that paragraph 26 was primarily intended to fill the gap between the making of an application under paragraph 20 and its final determination. Despite this, the Court considered that this did not prevent paragraph 26 being used as a free-standing right to apply to the Tribunal to acquire rights that were temporary in nature.

  The decision in CTIL v University of London has since been followed by the Lands Tribunal for Scotland in EE Limited v MacDonald, LTS/ECC/2019/009, 6 March 2020. In that application EE wanted to install telecommunications apparatus at a site in Argyll which was owned by third parties. Access to the site from the public road required to be taken by a track owned by MacDonald. No work was to be done to the track other than using it to transport equipment and apparatus needed at the installation site. The Lands Tribunal held that the Code right under paragraph 3(d) is to be interpreted as including a right to take access over land in order to take entry to other land on which the apparatus is to be installed. The case raises a further question about the scope of paragraph 26 of the Code. As noted in CTIL v University of London, paragraph 26 concerns interim rights which were primarily intended to fill the gap between making an application for Code rights under paragraph 20 and the determination of that application. CTIL v University of London extends paragraph 26 to temporary, one-off situations. In EE Limited v MacDonald the LTS notes that parties remained in dispute over valuation. The respondent was seeking a one-off payment of ￡2,500 and an annual payment of ￡1,500 whereas the applicants offered no capital sum and, by way of annual payment, only the improbably precise sum of ￡26.70 annually. This indicates that the paragraph 26 application was being used to secure a continuing future right of access, and not simply an initial temporary right of access. If that understanding of the application is correct, it would seem to be using paragraph 26 of the Code for a purpose which was not intended.