Telecoms operators met with unresponsive landowners provided fresh guidance

Mobile network operators EE and Three were seeking to carry out an intrusive survey of the rooftop of premises on New Oxford Street in London to determine whether the site is suitable for hosting its telecommunications equipment, under rights they enjoy under UK law.

The Electronic Communications Code is designed to support the expansion of the UK’s digital infrastructure. It provides qualified rights to telecoms operators enabling them to install and maintain equipment, such as fibre cables, masts and cabinets, on private property. The Code also provides interim and temporary rights enabling the operators to inspect prospective sites for their kit, which includes a right to carry out an intrusive survey.

EE and Three had written to the landowner at the New Oxford Street site to request access to carry out their survey. Two letters were sent to the landlord’s registered office in Luxembourg. When the operators received no response they applied to the Lands Chamber of the Upper Tribunal for an order allowing them to proceed with the intended survey. However, the tribunal ruled that the operators had not done enough to check that the landlord had received their letters.

Mairghread Yule, property dispute resolution lawyer at Pinsent Masons, said: “This case highlights what can go wrong where there are difficulties in identifying the landlord, and provides a further timely reminder of the importance of conducting proper due diligence checks before making tribunal applications.”

Ian Morgan of Pinsent Masons, specialist in resolving disputes between property owners and telecoms operators, said: “In this case, the application was refused outright at the first case management hearing, with the experienced tribunal judge choosing not to exercise their discretion to afford the operator more time to conduct further due diligence. The judgment follows on from an earlier ruling in the Windmill Farm case which also involved an unresponsive site provider and again highlights that the tribunal will not simply rubber stamp applications by applicants and expects parties to take practical, reasonable, steps before issuing an application.”

Morgan said that the tribunal has set out the steps that it expects parties to undertake before seeking an order.

In her judgment, Judge Elizabeth Cooke said: “There is no evidence before the tribunal that the claimant has visited the property or made any enquiries of those who occupy its six floors as to how they communicate with their landlord. There is no suggestion that any representative of the respondent has walked past the property and looked upwards to ascertain whether there is any other telecommunications apparatus on its roof, which might enable the claimant to make contact through another operator. As a matter of common sense all this should have been done once the respondent failed to answer correspondence.”

The judge could have adjourned the application to allow the operators more time to carry out the additional steps outlined. However, she refused to exercise the discretion she had to do this, citing that “there is no indication that the notice actually came to the respondent’s attention” and there had been a “failure to investigate the premises and make real efforts to contact the respondent once the respondent failed to reply to correspondence”.