A call to access?

Access on to land to facilitate telecoms work can be problematic. Is there a better way?

Access on to land and buildings to install or undertake work on electronic communications apparatus (such as antennas, base station equipment and fibre-optic cables) is a common point of friction between communications operators and the owners of the land/building on which the apparatus is located. This was highlighted by the Upper Tribunal’s recent decision in Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 356; [2018] PLSCS 188, which found that access for surveying purposes is a “Code right” under the new Electronic Communications Code. In addition, the Department for Digital, Culture, Media & Sport recently launched a consultation on amending the Code – “Ensuring tenants’ access to gigabit-capable connections” published on 29 October 2018 – to oblige landlords to facilitate access to their properties for operators to deploy apparatus where a service request is made by a tenant.

The proposal would see uncooperative landlords forced to permit operators to enter via a magistrates’ court-issued warrant of entry using powers similar to those which exist for other utilities.

For operators, easy access to land and buildings is key to the successful roll-out and operation of their networks. Their ideal access would be 24/7 and, where there are service-affecting faults, without delay.

For landowners and those managing estates and buildings, access by operators, their contractors and fibre and power service providers gives rise to building management difficulties, risks of business interruption, or damage or disturbance to crops, livestock or shooting seasons, security concerns, fire safety issues, the challenge of health and safety compliance, etc.

Operators complain that many landowners are obstructive regarding access. However, there are common complaints from landowners that operators and their contractors ignore their specific site access procedures and do not understand issues affecting property, its safety and management (all of which can lead to delays in permitting access).

Many landowners feel that they bear an unacceptable proportion of the costs of ensuring that access to and works on a site are conducted in a safe manner, with minimal disruption to others using the site.

Access as a Code right

The Code recognises the need for operator access on to land. The suite of “Code rights” in paragraph 3 of the Code that may be granted or contained in a court-imposed Code agreement includes rights for an operator, where apparatus is used in providing an electronic communications network, to:

• install apparatus on land;
• carry out works for or in connection with the installation of apparatus on land; and
• enter land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus on the land.

However, the Code contains no express right of entry for installing apparatus or prior to such installation. This led to the argument that operators have no right to access land to undertake surveys and preliminary investigations. Nonetheless, in Cornerstone, the Tribunal had no difficulty in concluding that the right to undertake preliminary surveys is a Code right: “otherwise the grant of the right [to install] would be illusory.” This is perhaps unsurprising given that the Digital Economy Act 2017 aims to facilitate the roll-out of digital infrastructure.

Ofcom’s Electronic Communications Code – Code Of Practice sets out best practice for landowners and operators to establish, develop and maintain effective working relationships, “to facilitate positive and productive engagement between all parties” to Code agreements, including site surveys and ongoing access. It suggests that:

• parties meet before entering into a Code agreement to discuss preferred access routes and processes and agree expectations as to what should happen when access is required;
• access for routine maintenance is organised so that operators can give sufficient notice in accordance with the access arrangements agreed with the landowner;
• in the case of emergencies (eg where there is a service-affecting fault), operators contact the landowner to explain when and why access is required;
• anyone accessing a site on behalf of operators carries photographic identification and can explain why they are there and for whom they are working; and
• operators adhere to any legal or regulatory requirements for managing location-specific risks.

These are sound and sensible suggestions. Sadly, best practice is often not followed and many issues seem to stem from the fact that landowner access procedures and contact details are rarely recorded in a comprehensive and coordinated fashion. This leads to the relevant information rarely, if ever, reaching the many (often tiered) contractors used by operators. Risk assessments and method statements are also frequently too generic when first received and it can be very labour-intensive for landowners to liaise with contractors to get them into an acceptable state.

Is there a better way?

With the demand for connectivity growing exponentially and the approaching wide-scale roll-out of 5G, the number of cell sites required and the corresponding need for access to sites is likely to increase substantially. However, with the risk of market rents falling as the industry applies the “no scheme” valuation criteria in the new Code and landlords often bearing the increasing costs of facilitating safe access to sites, many landlords are questioning whether they wish to continue providing cell sites to operators. Indications are that the telecoms market has “stagnated” as a result and, unless the relationship between operators and landowners improves, there is a real risk that the government’s ambition of having a world-class digital infrastructure in the UK will not be realised.

Part of the solution must lie with the provision to all those accessing sites of landowner access procedures, including details of requirements for managing location-specific risks, and meaningful sanctions being imposed on those who routinely fail to heed these.

Landowners recognise the important role that they and their sites play in developing a connected world but it will take “two to tango”. Is it time for landowners and operators to come together to negotiate an agreed way forward rather than relying on the government to try to do so?

This article was written by Emma Humphreys, Clare Fleming and Allison Mullen (Managing Director at Telemaster Limited). For more information please contact Emma on emma.humphreys@crsblaw.com or +44 (0)20 7203 5326.

This article was first published in Estates Gazette on 13 December 2018.