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University loses Court of Appeal battle over Electronic Communications Code and access rights for operators

The University of London has lost an appeal over whether the Upper Tribunal has power under the Electronic Communications Code to impose on the occupier of a building an agreement permitting access by an operator to determine whether that building is suitable for the installation of electronic communications apparatus.

The Deputy President of the Upper Tribunal, Martin Rodger QC, had found that the Upper Tribunal did have such a power. He also concluded that such a right can be free standing and time limited.

The background to the case of The University of London v Cornerstone Telecommunications Infrastructure Limited [2019] EWCA Civ 2075 was that the university owns and occupies a hall of residence called Lillian Penson Hall opposite Paddington Station.

Cornerstone Telecommunications Infrastructure, a company owned jointly by Telefonica UK and Vodafone, installs and maintains electronic communications apparatus which it makes available to its two shareholders. It is an "operator" for the purposes of the Code.

Following the loss of a site for electronic communications apparatus in Eastbourne Terrace, Paddington, Cornerstone was looking for another suitable site in the vicinity of Paddington Station. It identified Lillian Penson Hall as likely to be the most suitable site.

Cornerstone served notice on the university seeking the conferral of Code Rights to access the site for survey purposes only, although it reserved rights to seek the conferral of additional Code Rights should the land prove fit for purpose.

The university refused to grant Cornerstone that right. It subsequently sought to challenge the Deputy President’s conclusions (a) that the right sought by Cornerstone was a code right; and (b) that Cornerstone was entitled to seek an interim right without also seeking a permanent right.

The Court of Appeal (the Master of the Rolls, Lord Justice Lewison and Lord Justice Arnold) noted that “one of the avowed purposes of the Code was to reduce the price payable by operators for the acquisition of code rights. That was done by requiring the consideration for any such rights to be assessed in a ‘no network’ world.

“Landowners stand to receive much less for the conferring of rights under the Code. They therefore prefer to operate outside the Code where they can. That is the commercial consideration underlying this appeal.”

The Court of Appeal held that Cornerstone was seeking a code right within paragraph 3(d) of the Code when seeking to carry out a multi-skilled visit (MSV).

The Court also said it did not consider that it was a necessary part of an application under paragraph 26 that it be accompanied by an application under paragraph 20. “In short, we consider that a free-standing application under paragraph 26 is permitted by the Code.”

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