Another Court of Appeal Telecoms decision: do operators now have more rights of entry than the police?

The Court of Appeal has dismissed the appeal by University of London and upheld the decision reached by the Upper Tribunal in the case of CTIL v University of London regarding CTIL's request for interim rights pursuant to paragraph 36 of the new code to carry out a multi-skilled visit on the potential code site.

The judgment held that:

• A multi-skilled visit is considered to be a "code right" pursuant to paragraph 3(d) of the new code being: "works on the land for or in connection with the installation […] of electronic communications apparatus".
• An application for interim code rights (pursuant to paragraph 26 of the new code) could be made by an operator without the requirement for rights to also be sought under paragraph 20, ie the imposition of a code agreement.

Background 

Lillian Penson Hall is owned and occupied as a hall of residence by the University of London and was identified by CTIL as a potential site for the installation of electronic communications apparatus. CTIL requested access to the roof of the site to carry out a survey and non-intrusive investigations to establish whether the site was in fact suitable. CTIL sought the right pursuant to paragraph 26 of the code which deals with interim rights. The University of London refused to grant the right requested by CTIL but lost in the Upper Tribunal. They therefore appealed the decision and challenged whether (a) the right sought was a code right and (b) CTIL were entitled to seek an interim right without also seeking a permanent right.

Was the right sought a code right?

Yes. The Court of Appeal upheld the Upper Tribunal decision in which the Deputy President accepted that "works" (as referred to in paragraph 3(d)) would include carrying out a survey to determine whether the roof was suitable for the installation of telecommunications equipment. Furthermore the court concluded that the fact that such an installation may not actually take place was not a bar to the exercise of the right.

Interim or permanent – the operator has the choice.

Importantly the Court of Appeal found that the list of code rights set out in paragraph 3 is not a list of the rights that an operator must have, but is instead a list of rights that an operator can choose to have. Accordingly, if the right to undertake a survey on the site is a code right (as has been held) then an operator may request that right alone under paragraph 9, and if the occupier refuses it may apply to the Upper Tribunal pursuant to paragraph 20 for an agreement to the same effect.

Furthermore, the Court of Appeal agreed with CTIL that an operator has a choice to proceed under paragraph 20 or under paragraph 26. A paragraph 26 application is not parasitic on paragraph 20 (as argued by University of London).

Effect of the decision

This decision will be of significant concern to landowners, not only because the operators will now be able to survey their buildings but also because this case will be seen as opening the door towards wider use of interim rights under paragraph 26. As the University of London pointed out in this case, the test for the imposition of interim rights is a lesser test than that required by paragraph 20. There is also no apparent limitation on the period of an interim right or any restriction on the making of successive applications for the same interim right. Such interim rights appear to also be capable of being pursued despite the landowner having finally got into a position where he might seek the removal of the apparatus pursuant to Part 6.

In reality, the decision now effectively gives operators more rights to enter a property than the police. Surely this can't have been Parliament's intention when implementing the code…

A link to the decision can be found here.