Decision Nº TCR 56 2018. Upper Tribunal (Lands Chamber), 30-10-2018 , [2018] UKUT 0356 (LC)
| Jurisdiction | UK Non-devolved |
| Judge | Martin Rodger QC, Deputy President |
| Neutral Citation | [2018] UKUT 0356 (LC) |
| Date | 30 October 2018 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | TCR 56 2018 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2018] UKUT 0356 (LC)
Case Number: TCR/56/2018
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
ELECTRONIC COMMUNICATIONS CODE – CODE RIGHTS – access to buildings - whether Code rights include rights of access to assess the suitability of a building for the installation of electronic communications apparatus – whether interim rights to be granted – paragraphs 3, 20, 21 and 26, Electronic Communication Code – Schedule 3A, Communications Act 2003
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN:
CORNERSTONE TELECOMMUNICATIONS
INFRASTRUCTURE LIMITED
Claimant
and
THE UNIVERSITY OF LONDON
Respondent
Re: Lillian Penson Hall,
Talbot Square,
London
W2 1TT
Martin Rodger QC, Deputy Chamber President
Royal Courts of Justice, Strand, London WC2A 2LL
on
3, 9 October 2018
Oliver Radley-Gardner instructed by DAC Beachcroft LLP, for the claimant
Wayne Clark, instructed by Fladgate LLP, for the respondent
© CROWN COPYRIGHT 2018
The following cases are referred to in this decision:
Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436
British Waterways Board v Severn Trent Water Ltd [2002] Ch 25
Canada Trust v Stolzenberg (No.2) [1998] 1 WLR 547
McCarthy & Stone (Developments) Ltd v Richmond Upon Thames LBC [1992] 2 AC 48
R v Chief Constable of South Yorkshire Police ex.p. LS and Marper [2004] 1 WLR 2196
R v G [2004] 1 AC 1034
R (Sainsbury’s Supermarkets Limited) v Wolverhampton CC [2011] 1 AC 437
R v Secretary of State for the Environment, Transport and the Regions ex p Spath Holme Ltd [2001] 2 AC 439
St Leger-Davey v First Secretary of State [2004] EWCA Civ 1612
Introduction
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Dame Lillian Penson was a historian of late Victorian England and the biographer of Prime Minister, Lord Salisbury. In 1948 she was elected Vice-Chancellor of the University of London, the first woman chancellor of a University in Britain or the Commonwealth. After her death in 1963 the University named one of its Intercollegiate halls after her, the Lillian Penson Hall in Talbot Square, Paddington. It is situated opposite Paddington station and provides accommodation for 300 students.
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The claimant, Cornerstone Telecommunications Infrastructure Ltd, believes that Lillian Penson Hall (“the Building”) is likely to be the most suitable venue in the locality of Paddington station to provide a new site for electronic communications apparatus. A new site is required following the loss in May this year of a site on the roof of a building in Eastbourne Terrace which is to be demolished and redeveloped.
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The claimant would like to have access to the roof of the Building to carry out a survey and other non-intrusive investigations to establish whether the site is as suitable as its desk top assessments suggest. The need for access is a relatively modest one, and it is likely to be required on three or four occasions in one twenty-eight day period for visits of about two hours by members of the claimant’s staff.
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The University of London is the owner of the Building and the respondent to this reference. It does not want electronic communications apparatus on its roof and it has refused the claimant’s requests for access.
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The Tribunal is now asked to impose an agreement for access on the parties under the new Electronic Communications Code (“the Code”) which came into force on 28 December 2017. At this stage the claimant seeks no permanent rights to install apparatus, but in due course, if the Building is found to be suitable and the University refuses to enter into an appropriate agreement, the claimant is likely to make a further application in new proceedings for the imposition of an agreement.
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This will be the first substantive decision given by the Tribunal in a reference under the Code. The reference was issued on 16 July 2018 and came before the Tribunal for hearing on 3 and 9 October.
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The reference raises an important question of principle. Does the Tribunal have power under the Code to impose an agreement allowing access to a building for the purpose of determining whether it is a suitable site for the installation of electronic communications apparatus?
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At the hearing of the reference the claimant was represented by Mr Oliver Radley-Gardner and the respondent by Mr Wayne Clark. Both are contributors to a recently published book, The Electronic Communications Code and Property Law, and I am greatly indebted to them (and to their book) for their assistance in understanding the complex provisions of the Code.
The Electronic Communications Code
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The Code came into force on 28 December 2017 and replaces the original telecommunications code (often now referred to as “the old Code”) in section 10 and Schedule 2 of the Telecommunications Act 1984 (“the 1984 Act”) as amended by section 106 and Schedule 3 of the Communications Act 2003 (“the 2003 Act”). The new Code is found in section 106 and Schedule 3A of the 2003 Act, which were inserted by section 4 and Schedule 1 of the Digital Economy Act 2017 (“the 2017 Act”). The Code sets out the basis on which electronic communications operators may exercise rights, known as “Code rights”, to deploy and maintain electronic communications apparatus on, over and under land.
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The Code itself is divided into 17 Parts and 108 paragraphs, with additional transitional provisions found in Schedule 2 of the 2017 Act. In what follows, references to Parts and paragraphs are to those of the new Code.
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The Electronic Communications Code (Jurisdiction) Regulations 2017 confer jurisdiction on the Upper Tribunal in disputes in England and Wales concerning Code rights.
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An overview of the relevant parts of the Code is necessary to put the issues in context.
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In the language of the Code the claimant is an “operator”, being a person to whom the Code applies by reason of a direction under section 106 of the 2003 Act (paragraph 2(a)).
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The expression “Code rights” is defined in paragraph 3. The rights are expressed in wide terms to which I will return in greater detail shortly.
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A Code right may only be exercised for one of the statutory purposes specified in paragraph 4, namely, for providing an operator’s network, or for providing an infrastructure system (both “network” and “infrastructure system” are defined expressions, but it is not necessary to focus on them in this reference).
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Code rights are conferred under Part 2. By paragraph 9:
“A code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator.”
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Paragraph 9 might be thought to indicate that Code rights may only come into existence by agreement between willing parties, but that is not the case. Part 4 contains detailed provisions enabling the Tribunal to impose agreements by which the unwilling may be made subject to Code rights.
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Paragraph 20 describes the circumstances in which the Tribunal may impose an agreement for Code rights. An operator which requires a person to agree to confer Code rights must first give that person a notice setting out the rights and the terms of the agreement the operator seeks and inviting the person’s agreement (paragraph 20(2)). If within 28 days the recipient of such a notice (referred to as a “relevant person”) does not agree to confer the rights, or if they give notice that they refuse to do so, the operator may apply to the Tribunal for an order under paragraph 20 imposing an agreement between the operator and the relevant person which confers the Code rights on the operator (paragraph 20(3)-(4)).
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The test to be applied by the Tribunal in deciding whether to make an order imposing an agreement under paragraph 20 is contained in paragraph 21 which provides that two conditions must first be satisfied, as follows:
“21. What is the test to be applied by the court?
(1) Subject to sub-paragraph (5), the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met.
(2) The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.
(3) The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.
(4) In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services.
(5) The court may not make an order under paragraph 20 if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.”
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The first condition recognises that there may be certain circumstances in which it is not possible adequately to compensate by a payment of money for prejudice caused by interference with a person’s land. In such a case no agreement conferring Code rights may be imposed.
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The second condition, as amplified by sub-paragraph (4), requires that any prejudice caused...
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