The University of London v Cornerstone Telecommunications Infrastructure Limited

An operator may seek a code right limited to a preliminary multi-skilled visit (MSV) to assess whether land is suitable for electronic communications apparatus. An MSV is not ordinarily within the right to install under paragraph 3(a), because it may show that no installation will occur. It is, however, “works” undertaken “in connection with” installation under paragraph 3(d). Those words can extend to preparatory, non-intrusive surveys connected with a future and uncertain installation. An operator may apply under paragraph 26 for a free-standing interim code right without also applying under paragraph 20. The Upper Tribunal may control the duration and terms of the right through appropriate conditions.

The University of London owned and occupied Lillian Penson Hall. Cornerstone Telecommunications Infrastructure Ltd, an operator under the Electronic Communications Code, sought access to the building’s roof for a multi-skilled visit to assess its suitability for electronic communications apparatus. The University refused.

The Upper Tribunal (Lands Chamber) held that the requested access was a code right and that Cornerstone could seek it on an interim basis without also seeking permanent rights: [2018] UKUT 0356 (LC); [2019] JPL 324. The University appealed on both points. The central issues were whether an MSV fell within paragraph 3 of the Code and whether paragraph 26 permitted a free-standing, time-limited interim right.

1. Appeal dismissed. The Court of Appeal upheld the Upper Tribunal’s conclusions that the requested access was a code right and that a free-standing application under paragraph 26 was permitted.
2. An MSV is not necessarily part of the right to install under paragraph 3(a). Entry and steps required to carry out an actual installation are implicit, since otherwise that right would be nugatory. A preliminary survey may demonstrate that installation will not take place, making it difficult to treat the survey itself as installation.
3. The operations required for an MSV, including a non-intrusive survey, are “works” within paragraph 3(d). The word “works” is context-dependent. Paragraph 3(d) is wider than paragraph 3(a), and “in connection with” extends to works connected with a future and uncertain installation. The Code’s public-interest purpose would be frustrated if an operator first had to negotiate outside the Code for access to assess potential sites.
4. An operator may seek only one selected code right. If the occupier refuses, the operator may apply under paragraph 20 for an agreement imposing that right.
5. Paragraph 26 permits a free-standing interim application. It does not require a related paragraph 20 application or a final hearing. Paragraph 26(2) defines “interim” by reference to a specified period or event. The notice requirement in paragraph 26(3) requires compliance with paragraph 20(2), not proceedings under paragraph 20.
6. The “good arguable case” threshold under paragraph 26 is a summary threshold and need not be revisited on the balance of probabilities. The absence of security of tenure for an interim right helps explain the lower threshold. The Upper Tribunal may regulate access, supervision, duration and termination, and may strike out successive applications that amount to an abuse of process: [2018] EWCA Civ 31, [2018] 1 WLR 2812.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the Upper Tribunal’s conclusions on the scope of code rights and the availability of a free-standing interim application under paragraph 26.
• Upper Tribunal (Lands Chamber): held that the requested right was a code right and that an operator could seek an interim right without also seeking a permanent right: [2018] UKUT 0356 (LC); [2019] JPL 324.