Cornerstone Telecommunications Infrastructure Ltd v. University of London
Cornerstone, a joint venture company created by O2 and Vodafone, asked the University of London for temporary access to inspect one of its student accommodation buildings with the intention of permanently installing telecommunications equipment on the roof. Cornerstone wanted to access the space three or four times for around two to three hours each over a period of twenty eight days.
In the resulting claim to the Upper Tribunal (Lands Chamber) (UT), the University argued that an application for a temporary right of access must occur in conjunction with, and be reliant on, an application for a permanent right. The UT analysed the Electronic Communications Code (Code) provisions and held that no such requirement existed. It then considered whether there was a “good arguable case” for allowing the access.
It decided that by asking itself the following questions:-
(1) Is the prejudice caused to the relevant person by the order capable of being adequately compensated by money? The UT held that the prejudice to the University was capable of financial compensation.
(2) Does the public benefit likely to result from granting the Code right outweigh the prejudice to the relevant party? In this case, the UT decided that it did. The agreement sought was limited to a right of access on a few occasions during a limited period. The prejudice caused to the University by that was likely to be small, while the public benefit may be relatively modest, but still outweighed the prejudice to the University.
It is important to note that even if a good arguable case is established, the UT has discretion under the Code not to grant the right sought.
The case shows that it is not a prerequisite of the Code that a permanent right is being applied for before a provider can have a temporary right of access. If anything, the decision is a signal for landowners that the bar required to be reached by providers to get access to their properties appears to be fairly low. Landlords may therefore find it difficult to prevent access to providers to conduct comparable site surveys and assessments.
While the decision is an English one, we would expect the same approach to be taken in Scotland.
On December 6, 2018