When Code and RAMS Collide

James Nelson takes a look at the High Court's decision in Cornerstone Telecommunications Infrastructure Limited v London Borough of Hackney

The fundamental provisions of the new Electronic Communications Code (the “Code”) came into force following the passing of the Digital Economy Act 2017. The Code grants telecoms operators statutory rights to install, maintain and operate their electronic telecommunications networks over land subject to agreements with landowners – of both the private sector and the public sector.

When identifying new sites for the placement of telecommunications apparatus, telecoms operators often approach landowners to arrange and undertake a site survey, known as a multi skilled visit (“MSV”). An MSV can be as simple as conducting the viewing of a prospective site or as intrusive as penetration testing of the fabric of a building.

Courts have determined that an MSV is a statutory right[1] for operators under the Code. However, the recent case of Cornerstone (“CTIL”) v LB Hackney (“LBH”)[2] sets out a limitation to such right where statutory obligations pursuant to health and safety legislation is concerned. An MSV can only be undertaken if an operator has either the prior written agreement of a landowner (Part 2 of the Code) or if a court imposes an order conferring such rights (Part 4 of the Code).
Background

LBH owned a residential block, for which CTIL intended to assess the roof area to determine its suitability for housing telecommunications apparatus. CTIL sought to agree with LBH the terms for an MSV, however LBH was not prepared to allow access until it had assessed a site-specific RAMS (risk assessment method statement) produced by CTIL for the proposed MSV.

CTIL desired to access the roof area even if LBH were not content with the RAMS provided – which was unacceptable to LBH. Despite ongoing negotiations between the parties as to a draft interim Code agreement, CTIL applied to the Upper Tribunal Lands Chamber (UTLC) for interim rights to enable it to carry out an MSV.

Matters in Dispute

Whilst CTIL’s aim was to obtain interim code rights to undertake the MSV, LBH opposed this on the basis that it would be in breach of its statutory obligations under the Health and Safety at Work Act 1974 (“HASAWA”). Specifically, sections 3 and 4 of HASAWA create duties for LBH to ensure visitors to buildings under its control are not exposed to health and safety risks – the breach of such sections can give rise to criminal liability if reasonably practicable steps are not taken to mitigate risks.

LBH drew the attention of the court to the many risks and hazards present within the block, such as: “…smashed ceiling lights with jagged glass and the risk of head injury because of a low ceiling, rubbish in the water tank room, trip hazards, unprotected raised skylights on the roof, and litter on the roof…[3]”. Management of the roof area fell within LBH’s statutory undertaking pursuant to HASAWA and the UTLC held that as LBH retained full control of the access to the roof, it was “of course liable for unsafe practice that it could prevent[4]”. Such unsafe practice could conceivably include granting unchecked access to the roof by CTIL which, without an assessment as to the risks CTIL would be exposed to, could give rise to criminal liability.
Decision

The UTLC accepted that LBH knew the block and was therefore better placed to assess the risks present. The UTLC therefore imposed a term on the agreement between the parties which would entitle LBH to refuse access to the block unless and until it had approved the RAMS provided by CTIL. The court made it very clear that such approval from LBH could not be unreasonably withheld as a means to thwart CTIL’s ability to carry out a survey.

The UTLC also made the distinction between the site at hand being a new site to CTIL and contrasting this against an existing site for which CTIL may have operated from – the implication being that the decision may not have been the same in the event of the latter.

Reflections and Considerations

Although the case does not go as far as providing a means for landowners to evade or reject approaches for MSVs by operators, it confirms that statutory requirements which clash with the Code (and thus could give rise to liability on the part of landowners) must be taken into consideration.

There is an interesting distinction to be drawn between the decision of the UTLC in this case and the case of EE v LUL[5]. In EE v LUL, the landowner (LUL) argued that security of the London Underground network was at risk from EE’s proposed MSV. The UTLC rejected LUL’s arguments on the basis that security risks could be addressed by appropriate conditions. This can be contrasted against the decision in CTIL v LBH, where the breach of HASAWA could give rise to criminal liability. Courts therefore only seem prepared to condition MSVs in instances where appropriate conditions cannot override statutory obligations of landowners.

Landowners who have been approached by telecoms operators seeking access to the land for MSVs should seek legal advice to make sure that they understand their rights under the New Code and to secure an agreement that ensures: (i) any distinctive features relating to their property are taken into account and (ii) all rights and obligations expected of the telecoms operator are clear and (iii) that such an agreement does not unduly burden their property.

Sharpe Pritchard’s telecommunications advisory team offers advice and guidance to landowners across the full spectrum of property and planning issues arising from telecommunications installation and operation. If you have a query with regards an MSV or a new proposed arrangement with a network operator, please contact James Nelson (This email address is being protected from spambots. You need JavaScript enabled to view it.) or call 0207 405 4600 for a free initial consultation.

[1] Cornerstone Telecommunications Infrastructure Ltd v University of London [2018] UKUT 0356 (LC)

[2] Cornerstone Telecommunications Infrastructure Ltd v Mayor and Burgesses of the London Borough of Hackney [2022] UKUT 210 (LC)

[3] per para 17 of Judgment, Cornerstone Telecommunications Infrastructure Ltd v Mayor and Burgesses of the London Borough of Hackney [2022] UKUT 210 (LC)

[4] per para 54 of Judgment, Cornerstone Telecommunications Infrastructure Ltd v Mayor and Burgesses of the London Borough of Hackney [2022] UKUT 210 (LC)

[5] EE Ltd and another v London Underground Ltd [2021] UKUT 128 (LC)

James Nelson is a Solicitor at Sharpe Pritchard LLP.

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