In this latest decision the Tribunal has re-affirmed its stance that landowners will, in most cases, find it difficult to resist operators’ requests to survey land for the potential suitability of telecoms installations.

A reference was brought by EE and H3G under paragraph 26 of the Electronic Communications Code (“the Code”), seeking rights of access to undertake an “MSV” or “multi-skilled visit” at one of London Underground’s operational buildings. The purpose of the MSV was to assess the roof’s suitability for the installation of telecoms apparatus. London Underground had serious concerns about the security risks such access would present. Those concerns arose because London Underground had designated and described the building as critical national infrastructure (although it did not elaborate on the building’s precise function). Whilst the perceived risks were considered by the Tribunal, it was decided that those could be addressed by imposing appropriate conditions (i.e. security vetting of the attending third parties and proper supervision) and could be suitably compensated for. London Underground also asserted that it did not have the capacity to supervise the operators’ proposed visits; a position the Tribunal thought not credible.

Therefore, in a concise judgment, the Deputy President found in favour of the operators.

The Deputy President made very clear, however, that although the operators could satisfy the “good and arguable” test under paragraph 26(3)(b) they would need to give very serious consideration to the suitability of the building as a site for their telecommunications apparatus. The Deputy President specifically stating that:

“If we get to the stage of considering whether long term paragraph 20 rights should be imposed, involving much more frequent access, the security concerns…identified and which would no doubt be the subject of more informative evidence, might be enough to tip the balance.”

So, in a nutshell:

• Request to survey suitability of land is likely to be granted by the Tribunal, in most cases.
• Per paragraph 14.12 of the Tribunal’s Practice Directions, the Tribunal will look to determine such claims by a summary procedure at the first hearing, if that can be done fairly.
• Operators must, however, agree to the imposition of reasonable conditions, notice periods, security measures and where necessary compensate landowners.
• The test under paragraph 26(3)(b) is flexible and fact specific.
• That a right to survey is ordered (or indeed consented to) does not automatically mean that operators will satisfy the public benefit test set out at paragraph 21 of the Code in references brought under paragraph 20 of the Code.

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