The right to access and survey land refused

The right to enter land owned by the respondents to carry out a survey to determine whether it was suitable for the installation of telecommunications equipment has been refused. The case of EE Ltd & Anor v Cooper & Anor was heard in the Upper Tribunal.

The Electronic Communications Code regulates the legal relationship between “operators” who provide electronic communications networks or infrastructure, and those whose land they use. Central to the Code is the principle that “Code rights” can only be conferred upon an operator by agreement between the operator and the occupier of the land concerned. Unoccupied land is particularly problematic.

The Code also enables the Tribunal to impose upon an operator and the occupier of land an agreement that confers rights under the Code upon the operator on an interim basis, that is, until a specified date or the occurrence of a specified event. The Tribunal may impose such an agreement if the parties have agreed to the order being made or if the Tribunal thinks there is a good arguable case that a certain test is met.

The respondents, who were the registered proprietors of the land, did not respond to four requests for access to survey the land in question. The draft agreement attached to the notices sent to the respondents would have conferred on the claimants a right to vehicular and pedestrian access to the land on an unlimited number of occasions within a three-month period. In the absence of a response, the claimants approached the Tribunal.

In the absence of evidence about the land, or about the respondents, the application for interim rights was refused. It was not possible to say that the public benefit of granting the order outweighed the prejudice to the occupiers of the land when no contact had been made with the occupiers and in the absence of any information at all about them.