Dealing with MSV requests under the new Electronic Communications Code: Upper Tribunal clarifies guidance on conduct  

United Kingdom

In a judgment on costs, the Upper Tribunal has provided further guidance on conduct to operators and landowners when making and responding to requests for access for preliminary surveys.

Where dealing with such requests parties should seek to co-operate with each other as far as possible, in particular:

  • operators 'cannot simply demand unquestioning cooperation from property owners';
  • operators are discouraged from seeking a full panoply of Code rights (including rights to install unspecified electronic communications apparatus) in cases where the access required is "not out of the ordinary";
  • landowners should seek to deal reasonably with requests for access and not be obstructive; and
  • the Upper Tribunal is not likely to be attracted to technical arguments about the form of Code notices in this context.

The ultimate award of costs was designed to send a message that parties need to consider their actions very carefully. Unreasonable or obstructive behaviour by either party may have adverse cost consequences, even if a party is ultimately successful at any final hearing.

The case also illustrates it may be reasonable for an operator to be required to provide a £10 million indemnity (which exceeds the maximum level suggested in the Ofcom Standard Terms).

(Cornerstone Telecommunications Infrastructure Limited v (1) Central Saint Giles General Partner Limited and (2) Clarion Housing Association Limited [2019] UKUT 0183 (LC))