Covent Garden IP Limited v Cornerstone Telecommunications Infrastructure Limited

Under the interim-rights regime in the Communications Act 2003, there is no rule that consideration for a non-intrusive survey right must be nominal, or that expert valuation evidence is inadmissible. The tribunal has a discretion whether to include consideration and must assess whether it is appropriate to do so on the material before it.

Expert evidence is ordinarily controlled because it is seldom necessary in interim-rights cases. A late and inadequately supported application may properly be refused where it cannot be accommodated without disrupting the prompt determination of the claim. An erroneous reason for refusing permission will not make the final decision unjust where a properly directed tribunal would inevitably have refused the application on sound case-management grounds.

Covent Garden IP Limited, the owner of Alder Castle, did not oppose interim Code rights allowing Cornerstone Telecommunications Infrastructure Limited to undertake a further multi-skilled survey. It disputed the consideration payable and sought permission, shortly before the First-tier Tribunal hearing, to rely on expert valuation evidence.

The First-tier Tribunal refused that application, imposed an interim agreement for six months and awarded £1 consideration with compensation and specified payments for expenses. It later ordered the owner to contribute £8,400 towards the operator’s costs.

The owner appealed, contending that the refusal of expert evidence was legally wrong, that £1 lacked evidential support, and that the procedural error made the substantive decision unjust. The central issue was whether the error required the interim agreement to be set aside.

1. Appeal dismissed. The First-tier Tribunal’s refusal of permission to adduce expert evidence was based on a mistaken understanding that an MSV claim necessarily attracted nominal consideration. There is no such legal rule or inflexible practice. A site provider may seek substantial consideration and may rely on admissible expert valuation evidence if permission is properly sought.

2. Paragraph 26(6)(b) of the Electronic Communications Code makes consideration for interim rights discretionary. Read with paragraph 23(2), it requires the tribunal to decide whether inclusion of a consideration term is appropriate. The ordinary market-value provisions in paragraph 24 do not impose a duty to award substantive consideration for interim rights. Nominal consideration will often be agreed because MSV rights are short, non-intrusive, compensated for loss or damage, and assessed on the no-network assumption.

3. The procedural error did not render the substantive decision unjust. The application was made too late, gave no draft report or meaningful account of the proposed evidence, proposed an unrealistic timetable, and would have disrupted the expedited interim-rights hearing. A properly directed tribunal would therefore have refused permission on case-management grounds. It was entitled to decide, on the material available and its experience, that no more than nominal consideration was appropriate.

4. The Tribunal also refused permission to appeal the costs order. The First-tier Tribunal’s contribution order accorded with the usual approach to costs in interim-rights proceedings, and raised no point justifying appellate intervention.

• Upper Tribunal (Lands Chamber): dismissed the appeal from the First-tier Tribunal’s interim-rights decision and refused permission to appeal its costs decision: [2025] UKUT 136 (LC).
• First-tier Tribunal (Property Chamber): refused permission for expert valuation evidence, imposed interim Code rights for an MSV survey with £1 consideration, and later ordered a contribution of £8,400 towards the operator’s costs.