Please, sir, I want some more… consideration for your MSV survey

The Upper Tribunal has held that there is nothing stopping landowners from adducing expert valuation evidence in cases where an operator seeks to survey a landowner’s site, or that the consideration payable by the operator for that survey would necessarily be nominal. 

As the demand for connectivity increases, so too does the pressure on telecommunications operators to find sites on which to install their apparatus.  These sites will often belong to private landowners.  If an operator has identified a suitable site, usually its first approach to the landowner will be to request a survey (a multi-skilled visit, or “MSV”) to determine whether the site is suitable for the proposed installation. 

Under the Electronic Communications Code, the Government has given operators extensive rights to facilitate the roll-out of electronic communications networks.  These rights include the right to access land to carry out an MSV.  Subsequent case law has determined that only on rare occasions will a landowner be able to resist an MSV taking place, provided that the process under the Code has been followed.  For landowners, even if they agree to an MSV in principle, they are generally concerned about having their costs covered by the operator, being compensated for any losses, and sometimes receiving meaningful consideration. 

It has often been determined, and even assumed, that only nominal consideration (e.g. £1) would be payable, due to the interim nature of these rights.

In the recent case of Covent Garden IP Limited -v- Cornerstone Telecommunications Infrastructure Limited [2025] UKUT 136 (LC), the landowner sought to appeal the decision of the First-tier Tribunal on the basis that it should be permitted to adduce expert evidence to support a claim for meaningful consideration. The First-tier Tribunal described this application as “misconceived” because “this is an application for an MSV only” and because case law had “consistently made nominal orders for consideration” in these cases.

However, the Upper Tribunal held that there is “no principle that expert evidence cannot be relied on in an interim rights claim concerning an MSV”. On the facts of this case, however, the Upper Tribunal found that the application to rely on expert evidence should be dismissed as it had been made too late in the day, and was not accompanied by a draft report or any indication of the consideration being proposed.

Under paragraph 24 of the Code, the consideration payable would be the market value of the agreement to confer the Code right, which is what a buyer would pay a willing seller for the agreement based on certain assumptions.  One of those assumptions is the “no network assumption”, which means that there is no intrinsic value to be attached by virtue of the electronic communications activity on the site.  

Often, therefore, consideration is likely to be nominal.  However, there might be occasions where, applying the test above, a willing buyer would be prepared to pay more than the nominal amount.  A landowner is entitled to argue for substantial consideration and rely on expert evidence as to valuation unless there is good reason not to (usually by applying for permission).  The landowner will need to make such an application properly and in time, which is where the landowner fell short in this case.  If the parties cannot agree, it is then for the Tribunal to exercise its discretion as to the level of consideration, taking into account all relevant factors.  Despite the procedural irregularity, the Tribunal decided that £1 was appropriate in this case.  The landowner had sought £2,000.

Landowners will welcome the clarification of the principles.  The reality is that there is little case law where more than nominal consideration has been awarded for MSVs.  If the valuation evidence supports more meaningful consideration, landowners will then need to weigh up whether that increase in value merits the additional time and expense of producing that evidence and putting those arguments forward.  In addition, an application for permission to adduce expert evidence will need to be made in a timely manner otherwise that alone could be a reason for dismissal (as in this case).