Tribunal rejects telecoms operator’s request to carry out ‘intrusive’ investigative works

Tribunal rejects telecoms operator’s request to carry out ‘intrusive’ investigative works

This article was published on: 11th November 2021

Under paragraph 26 of the Code, operators can acquire Code rights on an interim, time-limited basis.

Interim rights are useful where operators are seeking to expand their existing network.  The rights are commonly sought to allow operators to access a property which does not already host telecommunications equipment and undertake a ‘multi skilled visit’ (or ‘MSV’) to assess its suitability as a new site.

Interim Code rights are given effect by the making of an order – see paragraph 26(1).  The qualifying test for acquiring interim Code rights is not as difficult to establish as the test which operators must satisfy to acquire “permanent” rights under paragraph 20 – only a “good arguable case” for satisfying the conditions in paragraph 21 must be made out.

The Tribunal cases have shown that it is difficult for a prospective site provider to resist an MSV if interim rights are sought by an operator. Even where a prospective site provider has legitimate security concerns about allowing an operator onto its property, it will not necessarily be enough to stop the Tribunal granting the right to MSV.[1]  The Tribunal has encouraged parties to adopt a co-operative approach and has expressed disapproval of what it considers to be excessive costs being incurred through parties being obstructive or unhelpful.[2]

In a recent case, Cornerstone Telecommunications Infrastructure Limited v St Martins Property Investments Limited [2021], the Tribunal has confirmed that this does not mean a site provider cannot raise legitimate concerns about the terms and extent of an MSV request. However, costs must still be kept proportionate and managed sensibly to be recoverable.

CTIL v St Martins Property Investments Limited [2021]

In this case, the operator sought interim rights under paragraph 26 to access the rooftop of 1 London Bridge – a prominent London building – and assess its suitability for a new site.  As part of that request, it sought permission to carry out “destructive investigative works” involving cutting open the roof and drilling holes, which it said were needed to determine the constructive materials of the roof, its structural framework and its load-bearing capacity.

The prospective site provider did not object to the MSV in principle but was alarmed by the invasive nature of the works and objected to these rights being included.  This was especially because part of the roof was coated with a material which would be particularly problematic to reinstate once it had been pierced.  The provider also voiced doubts about the prospect of the operator achieving a planning permission on the site.

The Tribunal was therefore asked to determine what the terms of the MSV agreement should be.

Decision

The Tribunal held that the proposed, intrusive works went too far and non-invasive, visual inspections should be undertaken firstly.  If the operator then required to carry out more intrusive works, it could seek to agree these or return to the Tribunal and ask for those further rights to be imposed.

When it came to costs, the operator had offered its standard practice undertaking towards the site provider’s legal costs (including transactional costs) of £1,500.  The site provider required the operator to reimburse its full outlay of £11,000 in transactional costs and £82,500 in other litigious fees and surveyor expenses.

The Tribunal confirmed the principle that prospective site providers should not be left out of pocket when it comes to MSVs and are entitled to be compensated for “all reasonable legal and valuation expenses.”  Reasonable expenses will be assessed by the Tribunal on the facts of each case depending on the particular issues and the building concerned.

However, the Tribunal confirmed that it expects MSVs should be capable of being managed at “modest expense.” Importantly, the operator cannot dictate whether there should be a “cap” on such costs, and each case turns on its facts. In this case, the site provider recovered its full transactional costs as the work required, and terms in dispute, justified the expenditure.

The Tribunal found that in some sensitive cases it may be appropriate for recoverable costs to include the cost of appointing a security guard or building manager to facilitate or supervise access; however, it is not generally appropriate for operators to be expected to pay the cost of professional supervision during non-intrusive investigations.

The Tribunal refused to award recovery of the site provider’s litigation costs, regarding them as disproportionate, despite its success on the issue of intrusive works. It awarded only £14,000 in total (accounting for the £11,000 of transactional costs) and took the opportunity to reinstate its aforementioned warning[3] regarding excessive costs.

Comment

Whilst a landowner’s chances of successfully resisting an MSV appear limited, this should not deter landowners from raising any genuine difficulties or concerns it may have. In particular, any health and safety issues, any concerns regarding the construction of the building or any legitimate comments it has as to the operators’ prospects of achieving a successful planning permission to install the apparatus which may be relevant.

Prospective site providers must be alive to the fact that in doing so, they cannot expect to recover all of their costs if the Tribunal considers they go beyond what is proportionate to the issues in hand.  Nonetheless, the Tribunal’s approach to transactional costs and the flexible assessment of what is reasonable in any given case, is an encouraging restatement that ordinary costs principles will apply – it is not for the operator to cap costs by reference to standard undertakings.

[1] EE Limited and Hutchison 3G UK Limited v London Underground Limited (1 June 2021); although security concerns might prevent the imposition of permanent rights.

[2] Cornerstone Telecommunications Infrastructure Limited v Central Saint Giles General Partner Ltd [2019] UKUT 183 (LC)

[3] Cornerstone Telecommunications Infrastructure Limited v Central Saint Giles General Partner Ltd [2019] UKUT 183 (LC)

Author: Amy Light, Associate

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