EE Limited and Hutchinson 3G UK Limited v London Underground Limited

An interim agreement under the Electronic Communications Code may confer access rights for a site survey where the operator has a plausible evidential basis for satisfying the paragraph 21 conditions. The interim test is lower than proof that those conditions are ultimately established.

A site provider must demonstrate real prejudice. A remote and theoretical security risk arising from a few brief, supervised visits does not establish prejudice incapable of monetary compensation. Security concerns may instead be addressed through proportionate terms, including vetting, restricted access, supervision and payment of the site provider’s costs. The Tribunal must still balance the public benefit of maintaining electronic communications services against the actual prejudice to the provider.

The claimant mobile-network operators needed to replace a nearby Central London rooftop site from which they had been required to remove their apparatus. They sought interim Code rights to make a small number of supervised visits to the roof of a London Underground operational building in order to assess its technical suitability.

London Underground accepted the importance of the operators’ services but opposed access because the building was critical national infrastructure. It relied on security concerns, including the effect of third-party access and staff supervision. The reference raised whether those concerns prevented the claimants from showing a good arguable case under paragraph 21 of the Electronic Communications Code, and whether interim access should be imposed under paragraph 26.

1. Interim rights imposed. The claimants had a good arguable case that both paragraph 21 conditions were met, and there was no basis for refusing the discretionary relief under paragraph 26 of the Electronic Communications Code.

2. Following University of London v Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 205, a multi-skilled visit may be a Code right even though it is not expressly listed in paragraph 3. Such access may be granted on an interim basis under paragraph 26 without a concurrent application for permanent rights under paragraph 20. A good arguable case requires a plausible evidential basis that the paragraph 21 conditions are satisfied; it is a flexible, fact-specific and lower threshold than the final paragraph 21 inquiry.

3. The claimed prejudice was confined to a limited number of short visits, on notice, to survey the roof. The possibility that supervised and appropriately vetted visitors might commit sabotage, compromise systems, or increase security risks was too remote and theoretical to amount to relevant prejudice. Any inconvenience, supervision and security measures were capable of financial measurement and compensation.

4. The Tribunal accepted that the building’s security was important and that a future application for permanent rights could raise materially stronger concerns. But those concerns did not outweigh the public benefit of enabling the operators to investigate a replacement site needed to maintain coverage and capacity in central London. The agreement could protect the respondent through security vetting, supervision, controlled access and payment by the claimants.

5. The parties were to seek agreement on detailed terms, with written submissions if necessary. Costs were reserved, with permission to apply after it became clear whether a paragraph 20 reference would follow.

not stated in the judgment.