Cornerstone Telecommunications Infrastructure Limited v The Mayor and Burgesses of the London Borough of Hackney

When imposing interim electronic communications rights, the Tribunal must determine appropriate terms by reference to the Electronic Communications Code, rather than previous agreements between the parties or other operators. An approval condition requiring the site provider to approve risk assessments and method statements may be appropriate where the provider knows the site-specific risks better than an operator conducting an initial inspection. The condition must not be used unreasonably or for purposes unrelated to safety. The Tribunal may also require proportionate terms for information, professional fees and transaction costs.

The claimant sought interim Code rights under Schedule 3A to the Communications Act 2003 to carry out a multi-skilled visit at a residential tower owned by the respondent. The proposed work comprised a visual inspection and a limited asbestos survey before any decision about installing electronic communications equipment.

The parties agreed that interim rights should be imposed but disputed six terms, principally whether access should depend on the respondent’s approval of the claimant’s risk assessments and method statements. They also disputed document provision, fees, enforcement costs, warranties and transaction costs.

1. Basis for determining terms. The Tribunal determined the disputed terms by applying paragraph 23 of the Electronic Communications Code. Previous consensual agreements, including agreements imposed by consent, did not constrain the decision when the relevant term was disputed.
2. Approval condition. The respondent’s approval condition was imposed. It was not necessary merely to prevent the respondent incurring criminal liability under sections 3 and 4 of the Health and Safety at Work Act 1974. However, the condition was appropriate under paragraph 23(1) and required by paragraph 23(5). This was an initial inspection at a site unfamiliar to the claimant’s contractor. The respondent was better placed to identify site-specific risks, and the claimant’s proposed activities created no risks specific to its telecommunications undertaking. The position could differ at an established operational site or where work involved installing or maintaining apparatus.
3. Approval was not to be unreasonably withheld. Rejection of the asbestos-survey RAMS merely because the survey was considered unnecessary for the MSV would be unreasonable, provided the proposed survey was safe.
4. Other terms. The respondent was required to provide within 21 days such relevant documents as it possessed or could reasonably obtain. The claimant was to pay £500 for document provision and £250 for reviewing both sets of RAMS. A clause requiring payment of enforcement costs outside the ordinary litigation costs process was excluded. The respondent’s more flexible wording concerning warranties and guarantees was adopted.
5. Transaction costs. The claimant was to pay the respondent’s reasonable negotiation costs after litigation fee-earners’ charges had been removed from the transaction-cost claim. The Tribunal noted that the negotiation had been unusually hostile and costly.