The Upper Tribunal (Lands Chamber) has imposed a condition requiring an operator to obtain the approval of the site provider to a risk assessment and method statement (RAMS) before accessing the site under interim rights under Schedule 3A to the Communications Act 2003 (the Electronic Communications Code) in Cornerstone Telecommunications Infrastructure Ltd v Hackney London Borough Council [2022] UKUT 210 (LC); [2022] PLSCS 134.
The case concerned Tradescant House, an 11-storey residential block owned by the respondent. The claimant sought interim rights under the Code to undertake a multi-skilled visit (MSV) to inspect the rooftop to ascertain whether it was suitable for the installation of electronic communications equipment. The MSV involved a visual inspection and an asbestos survey and would take a day. The respondent did not object to the claimant having interim rights but resisted some of the terms the claimant sought to impose, the principal bone of contention being responsibility for safety of the site.
The tribunal can impose an agreement for interim rights on such terms as it thinks fit, ensuring that the least possible loss and damage is caused to the those who occupy, own or are on the land, and must include payment of consideration.
The principal issue in dispute concerned which party had the last word about the adequacy of the RAMS. The claimant wanted to complete a RAMS for the visit, submit it to the respondent for comment and, having had due regard to any comments, to be entitled to proceed whether or not the respondent was content with it. The respondent wanted to be entitled to refuse access until it had approved the RAMS (“the approval condition”). For the claimant the central issue was one of control of its own operations and preventing delay. The respondent was concerned about the safety of the site for its residents, visitors and employees, and was anxious about liability under the Health and Safety at Work Act 1974.
The respondent’s duties under sections 3 and 4 of the 1974 Act are to take all reasonably practicable steps to eliminate or minimise risk to its employees and visitors. Unlike the position in On Tower Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152 (LC); [2022] PLSCS 133, where the tribunal decided that the sites were not part of the site provider’s undertaking so there could be no liability under the 1974 Act, what goes on on the roof of Tradescant House was very much part of the respondent’s undertaking as landlord and it retained full control of access to the roof.
The tribunal imposed the approval condition because the respondent was in a much better position than the claimant to assess the risks on site and because, in the event of a dispute about safety, an MSV with the approval condition was less likely to cause loss and damage to the respondent than the same agreement without it. The position would be very different if this was an established site operated by the claimant so that it was familiar with the building and site-specific hazards or if the claimant was visiting to install or maintain its apparatus.
Louise Clark is a property law consultant and mediator
