The Electronic Communications Code was designed to make it easier and cheaper for telecoms operators to access land in order to speed up the rollout of full fibre, super-fast broadband and create better mobile phone coverage throughout the UK. As we anticipated at the time of its proposal, payments to landowners for allowing their land to be used have fallen significantly, impacting their willingness to allow installation of apparatus on their property.
The Code’s right to install did not expressly set out permission for the right to access in order to carry out a pre-condition survey, although it included the rights to ‘install apparatus on, under, or over the land’ and to ‘carry out works on the land for or in connection with the installation of apparatus on, under or over the land or elsewhere’. A general interpretation of this had been that if a landowner refused access permission to conduct a survey, its absence would prohibit the ability to install equipment.
This was tested when a case was brought by CTIL (a joint venture between Telefonica and Vodafone) who had been refused permission by the University of London to access to the roof of one of its buildings to assess its suitability for a new mast installation.
The Tribunal noted the absence of an express right set out in the Code, but supported CTIL’s public policy point, whereby the Code had been enacted to enable the fast and cost-effective roll-out of new electronic communications services. It would be contrary to this policy, the Tribunal held, if landowners simply refused access. However, regard has to be paid to the following conditions: that the harm to the landowner can be adequately compensated by money; and that the public benefit outweighs any prejudice to the landowner.
Chris Hyde, Associate Director with Cooke & Arkwright’s Land Agency commented, “One side of the problem is that proposed rents for new telecoms installations have become completely inadequate from the point of view of the landowner. On the other hand, the operators are under pressure to progress the digital infrastructure that is vital to rural communities and the economy as a whole.
“This case may have set a precedent for operators, but it is doubtful that this is the end of the matter. There is unlikely to be truly constructive communications between parties while there are landowners still seeking redress in the courts. A new precedent may need to be set to see real progress.”