Cornerstone Telecommunications Infrastructure Limited v St Martins Property Investments Limited & Anor

Interim electronic communications rights may be imposed by the Tribunal without the voluntary consent of the site provider. A freeholder whose interest is remote ordinarily need not be joined merely to ensure that imposed rights bind it. The Tribunal should exercise restraint before granting interim rights for destructive investigations, particularly where the proposed works are undefined and may damage a valuable building. Non-intrusive surveys should ordinarily precede any application for intrusive works. A site provider is entitled to recover all reasonable legal expenses incurred in negotiating the imposed agreement, rather than merely a contribution. Applications for survey access should be conducted economically and proportionately.

The claimant sought an interim agreement under paragraph 26 of the Electronic Communications Code to access the roof of 1 London Bridge for multi-skilled visits and, at the same stage, to undertake destructive investigative works. The freeholder was joined because the head lease restricted structural interference. The leaseholder accepted the principle of access but disputed the proposed intrusive rights, compensation machinery, supervision fees and legal expenses.

The Tribunal considered whether the freeholder needed to be bound, whether destructive investigations were justified at the initial hearing, the appropriate terms of access and compensation, and the proportionate costs of the reference.

1. Freeholder. Interim Code rights under paragraph 26 are imposed by statute and sanctioned by the Tribunal. They are not voluntary acts of the site provider. A leaseholder therefore does not breach a covenant against structural works merely because a third party exercises rights imposed by the Tribunal. The freeholder’s remote interest gave no sufficient reason for joinder, and the claim against the City Corporation was dismissed.
2. Intrusive investigations. The Tribunal has power to authorise structural investigations, but its jurisdiction under paragraph 26(3) is discretionary. Paragraphs 23(1), 23(2) and 23(5) require appropriate modification and terms, including protection against unnecessary loss and damage. The low evidential threshold for interim rights reinforces the need for restraint. Undefined or wide-ranging destructive rights should not ordinarily be granted where the site provider objects and the operator has supplied little detail about the works. Non-intrusive surveys should first establish the building’s suitability. A later application may seek specific additional rights, supported by details of the proposed equipment and works.
3. Compensation and supervision. The statutory compensation regime should not be displaced by unnecessary contractual machinery. Reasonable access-related expenses may be recoverable, including modest costs of security or building management where necessary. Professional supervision of professionals is generally inappropriate for non-destructive investigations, although sensitive buildings may justify supervision at the operator’s expense.
4. Legal expenses and costs. Under paragraph 84(2), the site provider may recover all reasonable legal expenses incurred in negotiating the agreement. The leaseholder was awarded £11,000 for transactional legal fees. The claimant was ordered to pay the first respondent’s litigation costs assessed at £12,500 and the freeholder’s costs assessed at £1,500. The Tribunal reiterated that paragraph 26 references should be conducted within a modest, proportionate budget.