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Telecommunications: Tribunal warns Site Provider who failed to respond or properly engage following Operators' requests for access to survey

23 January 2020
In EE Limited & Hutchison 3G UK Limited v Eton Red Properties Limited [2019] UT TCR/305/2019, the Tribunal imposed interim rights sought by two Operators to survey a site and ordered the Site Provider to pay legal costs in the sum of £9,000.

Background 

In order to establish whether a site is suitable for the installation of telecommunications apparatus, Operators firstly need to carry out surveys. The case of Cornerstone Telecommunications Infrastructure Limited v University of London [2018] UKUT 0356 (LC) confirmed that, for the purposes of the Electronic Communications Code, code rights include the right to access a building to undertake surveys. 

The Facts

EE Limited ("EE") & Hutchison 3G UK Limited ("H3G") made approaches to Eton Red Properties Limited ("the Site Provider") in 2018, requesting access to Greencoat House in order to carry out surveys. No response to these requests was received.

DWF Law LLP ("DWF"), Solicitors for EE & H3G, wrote to the Site Provider on 27 February 2019 requesting access to survey Greencoat House and provided a draft Early Access Agreement ("EAA") for the Site Provider's consideration. The EEA would govern the contractual relationship between the parties.

DWF received a telephone call from an individual representing the Site Provider on 5 March 2019 who stated that the Site Provider had obtained planning permission to redevelop Greencoat House. Having been unable to find any planning permission on the local authorities' planning portal, EE & H3G served Code Notices pursuant to Paragraph 26 of the Electronic Communications Code. The Respondent failed to respond to these Code Notices. 

On 5 July 2019, EE & H3G issued a reference in the Tribunal seeking an order for the interim rights sought in the EAA. The Tribunal listed the matter for a Case Management Hearing on 30 August 2019 to consider the application for interim rights. On 27 August 2019, the Respondent accepted for the first time that a non-intrusive survey was acceptable to them. On 29 August 2019, the Respondent filed further documentation; a letter from a different Operator requesting access to the site, planning documents and drawings. At the Case Management Hearing, the Site Provider conceded that an EEA should be ordered but disputed the terms sought by EE & H3G. 

Judgement

The Judge found that no planning permission had been granted to the Site Provider and they had nothing to show they had a serious intention to do works to Greencoat House. Had the Respondent not conceded that they were content for an EAA to be granted, the Tribunal would have had no problem imposing one. The Tribunal found that the lack of responses from the Site Provider was relevant to what the terms of the EAA should be and what costs order should be made. 

The Site Provider failed to make any observations on the terms of the EAA despite receiving the draft document in February 2019 and later being specifically asked by DWF whether they had any proposed amendments. The Tribunal found that the failures in the case had been the Site Provider's initial failure to respond to the requests and later, their failure to properly engage regarding the terms of the EAA. The Tribunal found that the Site Provider had wasted their opportunity to amend the terms of the EAA and so the terms as sought by EE & H3G should be imposed. The Judge went on to summarily assess costs and ordered that the Site Provider pay EE & H3G's costs in the sum of £9,000.

Comment 

Upon receiving a request from an Operator for access to carry out surveys to assess the suitability of a site for the installation of telecommunications apparatus, Site Providers should respond in a timely fashion and properly engage in discussions with Operators and their solicitors. A Site Provider who fails to do so risks losing the opportunity to challenge the terms of the agreement sought and the Tribunal making a substantial costs order against them.