Mobile Operators Win Key UK Appeal Case Over Building Access

The Court of Appeal has upheld a key judgement in favour of Cornerstone (umbrella company for O2 and Vodafone’s network sharing), which means that 4G / 5G mobile and broadband operators can force access to land in order to conduct a survey. The case was a key test of the revised Electronic Communications Code (ECC).

The case began last year after Cornerstone requested access to a rooftop in Paddington – belonging to the University of London – in order to undertake a survey to see whether it is an appropriate location for the installation of telecoms equipment to replace a site that Cornerstone lost for redevelopment.

Historically there’s been plenty of 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 gigabit-capable broadband coverage and 5G mobile.

The reformed Electronic Communications Code (ECC), which was 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.

Some progress has been made but a few grey areas remained. For example, the case between the University of London and Cornerstone, had sought to test the code. In this case Cornerstone 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 argued that no such right existed under the Code for one of their private buildings, while the Upper Tribunal last year disagreed and ruled that they could gain access as part of the code’s right to “install” (here). The court also supported Cornerstone’s public interest point (i.e. the goal of improving mobile connectivity for all) and the need for flexibility in related agreements. Despite this an appeal was lodged and the case continued, until now.

Alison Hardy, Partner at law firm Ashurst, said:

“This will be welcome news for telecoms operators and a disappointment for landowners. Given that the roll out of 5G is seeing operators send out many requests to conduct surveys of sites to assess suitability for installing telco equipment, this is a key decision. The Court of Appeal found that ‘Code Rights’ under the Telecoms Code also include the right to survey.

The court also held that it is not necessary to have a substantive application for the right to install in order to apply for interim rights.

As the test to obtain interim rights is less stringent than for permanent rights, this could have significant implications. Interim rights can be sought for an indefinite period of time so this could create a loophole in which operators seek interim rights to survey and install on sites where they feel they have a weaker argument, despite not having security of tender.

Landowners may though prefer interim rights to be granted as a way of avoiding the restrictive regime for removing equipment from potential development sites. Whether that falls foul of the anti-avoidance provisions is yet to be determined.”

A copy of the full judgement can be read online.