Telecoms Operators Win Key UK Court Case Over Building Access

The UK Government’s revised Electronic Communications Code, which is designed to make it easier and cheaper for broadband ISPs and mobile operators to build their networks, has passed an important hurdle after a court ruled that CTIL (O2 and Vodafone) could force access to land in order to conduct a survey.

Historically there’s always been tension around this subject, not least due issues of disruption, access and cost (rental). As a result disputes over wayleave agreements have in the past sometimes made it far too difficult or expensive for providers to expand their network coverage, which must be overcome in order to support the Government’s ambition for universal “full fibre” (FTTP) coverage and 5G mobile (here).

The reformed Electronic Communications Code (ECC), which is part of the 2017 Digital Economy Act and supported by Ofcom’s Code of Practice (here), was designed to overcome as many of the problem areas as possible by making it easier and cheaper for telecoms operators to access public or private land in order to build new networks.

Since then a related agreement has seen landowners and telecoms providers come together in order to express their support for the changes (here). Similarly the Country Land & Business Association, National Farmers’ Union, Openreach, Virgin Media and Gigaclear have also agreed to a new general wayleave arrangement (here). But some grey areas remain.

For example, a recent court case between the University of London and Cornerstone Telecommunications Infrastructure Ltd (CTIL), which is responsible for managing O2 and Vodafone’s UK network, has sought to test the code. In this case CTIL had requested a limited right to access some roof space in order to conduct a survey, with a view to possibly installing new mobile network equipment, but their request was refused.

The University of London strongly felt as if no such right existed under the Code for one of their private buildings (in the Paddington area), while the Upper Tribunal disagreed and ruled that they could gain access as part of the code’s right to “install“. The court also strongly supported CTIL’s public interest point (i.e. the goal of improving mobile connectivity for all) and the need for flexibility in related agreements.

Simon Tarr, Pegasus Group Director, told ISPreview.co.uk:

“This judgement is the first to be decided by the Lands Tribunal since the new Electronic Communications Code came into force at the end of December 2017.

The case was rather complex and the decision detailed but the basic premise is that under the New Code, an operator does not need the agreement of the land or building owner to be able to install telecommunications equipment.

There are a couple of conditions to satisfy: 1. That the harm to the landowner can be adequately compensated by money and 2. That the public benefit outweighs any harm to the landowner.

However, the judgement reinforces the fact that the New Code has teeth and enables the Lands Tribunal to force an unwilling landowner to enter into a new lease for a telecoms site.

Clearly there needs to be wider debate about site suitability and alternative site options in each instance and as such, agreements are only likely to be forced in a small number of cases. Nevertheless, this is a significant development for the world of telecoms and demonstrates the Government’s intention to fully support the rights it outlined in the New Code and the further development of modern, wireless infrastructure.”

One rather big problem with all this is that the scales have switched around over the past few months. As a result some telecoms operators are no longer playing fair, which is a topic that the UK Digital Minister, Margot James MP, is keen to resolve (here). “I have heard about some really derisory payments being offered to farmers. They were probably earning more than was reasonable before, but that does not mean to say we need to go to the other extreme,” said Margot.

For example, some rents on greenfield sites that would have previously attracted £5,000/year or more have been cut to £3/year and other farmers have seen deals fall from £12,000/year to £50/year. Likewise one report that recently passed through ISPreview’s inbox alleges that CTIL offered just £50 for a roof site where they were previously paying £6,000 (on the same roof EE are said to be paying £12,000!).

The old charges are clearly extortionate, but replacing those with a figure of £50 is going to the opposite extreme. As usual this highlights the difficulty with finding a good balance and expecting both sides to play fair. Margot James MP is currently busy trying to find a solution and hopefully the operators’ will agree to revise their approach, otherwise we’ll be back to another legislated change and that could be counter-productive.