Electronic Communications Code - Tribunal provides further clarity on scope of multi-skilled visits

Nearly four years on from the introduction of the new Electronic Communications Code, the question of access onto land and building for the purposes of installing electronic communications apparatus (or even carrying out an initial survey to ascertain suitability) remains a source of tension between landowners, occupiers and operators.

For many landowners, the first indication that their land might become subject to Code Rights comes when they receive a request under paragraph 26 of the new Code for a multi-skilled visit (an “MSV”) to enable an operator’s contractors to assess the suitability of a land or building to accommodate electronic communications apparatus.  To date, the Tribunal has been clear that landowners have limited ability to resist such requests.

The recent case of Cornerstone Telecommunications Infrastructure Limited v. St Martins Property Investments Limited [2021] UKUT 262 concerned a building known as 1 London Bridge, which occupies a prominent position in the London skyline.  The landowner holds a head lease of that building for 150 years and has sublet parts of the building to multiple sub-tenants.  The freeholder of the building was also joined to the proceedings but the Tribunal quickly addressed the point that its permission for the MSV was not required.

In this case, the head leaseholder did not object in principle to the MSV but there were disagreements over specific terms within the agreement and these were referred to the Tribunal.  In particular, the head-leaseholder did not consider that the operator was entitled to undertake “destructive investigative works” as part of the MSV.  These works were to include:

• Cutting the roof covering on the building forming part of the head leaseholder’s property to determine the structural framework underneath;
• Drilling holes in the roof or walls of the building to ascertain the location of any structural beams and load-bearing capacity; and
• Removing plasterboard to identify the construction materials beneath and/or removing cladding to identify the construction materials beneath.

Decision & guidance

The Tribunal held that it was not able to impose an agreement including provisions for the operator to carry out intrusive works at the first hearing.  Instead, it directed that the operator should first carry out non-intrusive works and then seek agreement if further works were necessary.  If the parties could not agree, it was then for the operator to refer the matter once more to the Tribunal to seek additional rights and to specify in detail the works it wished to carry out. 

This case provided some further helpful guidance to parties negotiating MSV agreements, including the following findings/observations by the Tribunal:

• It is “flawed” to suggest that a landowner should be left out of pocket on the question of legal expenses.  It is not uncommon for operators to offer a fixed amount in respect of legal expenses.  The Tribunal has held that a landowner is entitled to recover all of its reasonable legal expenses.  What constitutes “reasonable” will vary from case-to-case depending on complexity.  In this case, the operator offered £1,500 although its counsel argued that £750 should be a reasonable sum for negotiating an agreement.  However, £11,000 was held to be reasonable on the basis that the building was particularly valuable and there were issues that were reasonably suitable for negotiation. The Tribunal stressed that this was not an attempt at setting the “norm”. 
   
• Under paragraph 84(2)(a) of the Code a landowner has the right to compensation for expenses which it has incurred including reasonable legal and valuation expenses.  However, the Tribunal noted that it will not generally be suitable for landowners to incur the cost of professional supervision of other professionals where non-intrusive works are being undertaken. 
   
• It is “perfectly proper” for a landowner to point out difficulties to operators as to a building’s suitability – for instance, access or health and safety issues, any sensitivities regarding the roof surface, or the unlikelihood of planning permission for apparatus to be installed.
   
• There ought to be a sensible limitation period for the duration of any MSV agreement (in this case, it was set to six months).

Comment

This decision provides additional clarity as to how the Tribunal views the appropriate approach to MSV agreements.  Although the landowner in this case recovered only a fraction of the £82,500 of legal and surveying costs incurred on the Tribunal proceedings, other landowners will no doubt welcome the cautious approach indicated by the Tribunal when it comes to a request from an operator to impose intrusive works under an MSV agreement.

Background information

The new Code was introduced towards the end of 2017 to address the public need for improved connectivity.  Part of this is the installation and maintenance of electronic communications networks and the Code confers certain “Code Rights” to operators in order to support this.  The Tribunal has been kept busy with determining disputes under the new Code, with a range of cases to test the boundaries of this relatively new legislation.

For more information on the above please contact Samuel Lear or your ususal Charles Russell Speechlys contact.