Electronic apparatus installation: Whether a right exists to survey a site for the proposed installation of electronic communications apparatus (University of London v Cornerstone Telecommunications Infrastructure Ltd – 2019)
Does a communications operator have the right to access a site and survey it for suitability of an apparatus installation under the Electronic Communications Code contained at Schedule 3A to the Communications Act 2003?
The background
In University of London v Cornerstone Telecommunications Infrastructure Ltd [2019], Cornerstone identified property belonging to the University as a potentially suitable site for installation of communications apparatus but required a site survey to assess suitability in greater detail. The University denied access, arguing that such a right was not contained within the Electronic Communications Code.
Cornerstone’s application was made pursuant to Code rights, although the Code does not include an express right to gain access to carry out surveys. Interim rights under para 26 of the Code were sought, and the University argued that Cornerstone’s claim could not be made without also a claim for final rights.
The decision
The Court of Appeal found that rights to access and survey a site form part of the rights contained under 3(d) of the Code and decided in favour of Cornerstone. Para 3(d) grants rights to undertake works ‘in connection with’ activities including installation of apparatus. The Court held that a site survey formed part of the ‘works’, as the survey was conducted in order to ascertain whether a site is suitable for installation.
The University’s argument that a claim for interim rights could not be made without a claim for final rights was rejected; interim rights claims under para 26 could be made independently.
Advice and action
Block managers, landlords and those owning and occupying commercial buildings may wish to note the findings in this case, bringing awareness and clarity to the courts’ position in relation to surveys of prospective sites.
The Court of Appeal found that rights to access and survey a site form part of the rights contained under 3(d) of the Code and decided in favour of Cornerstone.
