First-tier Tribunal Grants Interim Rights for Electronic Communications Installation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

: BIR/00CN/EIA/2025/0603

Property

: Croydon Crown Court - land and buildings on the west side of [ADDRESS], north side of [ADDRESS] and south side of [ADDRESS] : [APPELLANT] (Operator)

Representative : [COUNSEL] [NAME] instructed by [COUNSEL] (UK) [RESPONDENT]

Respondent

: [redacted] Local Government (Site Provider)

Representative : [COUNSEL] instructed by [COUNSEL] (UK) [COMPANY] : Electronic Communications Code

Paragraph 26 (interim rights)

Date of Order : 20th March 2025

DECISION

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1. A Reference under Schedule 3A of the Communications Act 2003 was received by the Tribunal on 10th January 2025 including an application for an order imposing an agreement for rights under paragraph 20 of the Electronic Communications Code requiring the parties to enter into a new agreement for the occupation by the Claimant of land belonging to the Respondent and also including an application for an order under paragraph 26 imposing an agreement for rights under the Electronic Communications Code on an interim basis.

The Claimants Case

2. The Claimant is an operator for the purposes of the Code by virtue of a direction given by OFCOM. The Claimant has been appointed by [NAME] to build a communications system as part of the [NAME]. Existing coverage is incomplete and inconsistent. The Programme will benefit rail passengers, local residents and businesses. The Programme supports the UK Government’s Digital Strategy of giving the public access to a choice of high quality electronic communications services.

3. The Claimant’s case is that there is a lack of coverage in the vicinity of land to the south if East Croydon Railway Station. It is said that [NAME] do not have enough coverage to handle increased capacity for the [NAME].

4. The Claimant seeks to install ECA to the rooftop of Croydon Crown Court. The site is part of the Government’s Civil Estate. The site is particularly suitable as it is very close to the railway and is of sufficient height (over 21m) to provide clear coverage across the railway to businesses in the surrounding area.

5. The Claimant has not carried out a site inspection but believes that the building is of modern concrete frame construction with a flat roof suitable for the installation of ECA. From a radio planning perspective the site is a suitable distance from other sites ensuring no “gap” in coverage.

6. There is some urgency in respect of this application to ensure “end to end” connectivity as part of the [NAME] which has overrun its original 2 year duration ending by November 2023. It appears that the parties had entered into an MSV agreement on 14th March 2023. However I am told that the next phase of the Programme was then “put on ice”. Notices under Paragraphs 20 and 26 of the Code, which are the subject of the present reference, were subsequently served on 27th November 2024. [NAME] [APPELLANT] for the Claimant indicates that there is once again some degree of urgency as interim rights are a precondition of approaching the Local Authority to obtain road closures for crane placement.

7. The Claimant relies on its Statement of Case dated 10th January 2025 and Witness Statement of [NAME] dated 13th March 2025.

8. [NAME] [APPELLANT] is Head of Design with the [NAME]. [NAME] [APPELLANT] has not visited the site. He understands that the Court building is 4-5 storeys tall and sits directly adjacent to the railway line. Proposed ECA comprises equipment cabinets (44 sq. m.) and 3 antenna frames to accommodate antenna of 4 sq. m. The

3 antenna will be 25m above ground level sitting on plinths on the roof deck which is just over 21m above ground level. The proposal is to accommodate 3 [NAME]’s with 5G.

The Respondent’s Case

9. The Respondent relies on Statement of Case dated 3rd February 2025 and Witness Statement of [NAME] dated 13th March 2025.

10. [NAME] [NAME] is [NAME] [NAME] Manager for HMCTS. The site is an operational Crown Court holding serious criminal trials as well as housing the County Court. The building comprises 4 floors with a basement area. [ADDRESS] is of concrete framed construction with a flat felt roof.

11. There are secure areas comprising custody suites, judicial rooms and jury deliberation rooms. Security is understandably tight. There are security entrance checks. Visitors must produce identification. Escort procedures are in place for contractors. The basement car park is used by court staff, judiciary and SERCO.

12. [NAME] [NAME] helpfully explains the stringent security requirements at the site. At paragraph 17 of his Witness [NAME] [NAME] explains that access can only be deemed appropriate where security concerns are “comprehensively and satisfactorily addressed”.

13. [NAME] [NAME] has well founded security concerns about access arrangements. The basement car park is used by SERCO for transfer of prisoners as well as access for vulnerable witnesses. [NAME] [NAME] has given consideration to access via the main basement stairwell which leads directly to the roof with any other routes leading to the public side of the building. The judicial entrance is not suitable for security reasons. [NAME] [NAME] is rightly concerned that access does not compromise security and confidentiality of the site.

14. [NAME] [NAME] is also concerned about processing of tools and dangerous equipment. Bringing such items on site will require careful management , detailed inventory and securing tools. Additional staff may be required to ensure screening and escorting of contractors does not result in existing security staff from being diverted from their existing duties causing delay in the courts.

15. I am not persuaded that the mere presence of ECA will significantly raise the risk profile of the site. Nor am I persuaded that sharing, a Code right in itself, will cause any additional or significant risk.

16. Noise, however, is a significant issue for those involved in both criminal and civil hearings. The solution may be to require works to take place out of hours or at weekends.

17. [NAME] [NAME] addresses a number of logistical matters. These include the extent of the rooftop to be demised, whether or not the roof is adequately weightbearing, location of cranes, risk assessments and capacity of the existing power supply. These

4 are matters routinely dealt with in Code Agreements between operators and site providers and I do not consider that of themselves those matters are determinative of this application.

18. The focus of the parties must be security, access and noise.

The Law

19. The Tribunal may grant Interim Code Rights under Paragraph 26 where it “thinks that there is a good arguable case that the test in paragraph 21 for the making of an order under paragraph 20 is met.”

20. The Tribunal may make an order if (and only if) the Tribunal thinks that both of the following conditions are met:

21(2) The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

21(3) The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

21. Security concerns were considered by the Upper Tribunal in [COMPANY] and Hutchison 3G UK Limited v [NAME] [2021] UKUT 018 (LC). The Deputy Chamber President gives helpful guidance as to the application Paragraph 26 of the Code following from the decision of the Court of Appeal in University of [NAME] v [NAME] [2019] EWCA Civ 205.

22. It is important that I distinguish the interim rights sought in University of [NAME] and [NAME] from the interim rights sought before me. In both those cases all that was sought were rights to carry out a survey, or MSV, as to suitability of the sites. Before me the Claimant seeks interim rights to commence installation of ECA under what is called an Early Access Agreement.

23. At paragraph 7 the Deputy Chamber President sets out how the Claimant may demonstrate a good arguable case:

“For a claimant to demonstrate a good arguable case does require that it make out its case to the normal civil standard of proof on the balance of probability; as the Court of Appeal confirmed in University of [NAME], at [77], a good arguable case is a lower test than is laid down by paragraph 21 itself. Instead it means that the claimant must show that it has a plausible evidential basis for its claim that the paragraph 21 conditions are satisfied. The test is flexible and fact specific.”

Deliberation

24. As to the first condition in contrast to the cases I have referred to the Claimant seeks to install apparatus and have a permanent presence on the rooftop. Ms [COUNSEL]

5 [NAME] for the Respondent submits that the prejudice in terms of inadequate access arrangements, security risks and disruption of the administration of justice is not capable of being adequately compensated in money.

25. For the Claimant [NAME] [COUNSEL] [NAME] submits that the inconvenience of access and supervision can be compensated by the payment of money.

26. The answer to the Respondent’s concerns is to be found in [NAME] at paragraph 20:

20. The solution to [NAME]’s concerns is prior security vetting and proper supervision of those visiting the building, at the claimants’ expense. Objections similar to those relied on in this case were considered by the Court of Appeal in the University of [NAME] case, at [79]-[80], as follows:

“[NAME] [NAME] also emphasised the fact that the Code applies to land of all kinds. There may be sensitive Government buildings, for example where it would be inappropriate to allow access for an MSV, let alone the actual installation of electronic communications apparatus simply on a basis of a good arguable case, without requiring the operator ultimately to satisfy the full test under paragraph 21. …

We consider that most if not all of the potential problems can be dealt with by the terms of the agreement that the Upper Tribunal imposes. It could for example provide for limited hours of access, restrict access to sensitive parts of the building, provide for supervised access and so on. ... In an extreme case, the Upper Tribunal might exercise the discretion which it has under paragraph 26 to refuse to impose the agreement at all.”

27. I am satisfied, subject to conditions as to vetting and security checks (to be paid for by the Claimant), processing of dangerous equipment and a requirement to carry out work out of hours or at weekends, that the Respondent’s well founded concerns around access, security and noise can be allayed. I also take into account that the parties were able to agree terms for an MSV involving intrusive works in March 2023 and that the Respondent’s approved contractors have installed solar panels at the site. On that basis the Claimant has made out a good arguable case that the first condition is met. Prejudice in respect of access, security and noise can be adequately compensated by money.

28. The second test is easier. This is a [NAME] project backed by the Government. There is a need for connectivity and Croydon Crown Court is a key site. In accordance with the aims of the Code the site will accommodate 3 [NAME]’s. Having regard to public interest in access to a choice of high quality electronic communications services, I am satisfied on the basis of the written evidence concerning the [NAME] and potential gap in coverage, that the public benefit likely to result from the making of the order outweighs the prejudice to the Respondent.

29. The Claimant has satisfied me that it has made out a good arguable case that the paragraph 21 conditions are met. Ms [NAME] properly submits that the pressures on the criminal courts are acute and critical. Any disruption can only lead to yet more

6 delay in the administration of justice. Those points are well made. However I am not persuaded that this is an extreme case or that I should decline to exercise my discretion to make impose an agreement.

30. The parties should note that that nothing I have said in this Decision prejudges the issues for determination on the hearing of the Paragraph 20 reference in June of this year. As was pointed out in [NAME] more extensive rights may be in issue and, of course the burden of proof will be different. The Claimants have succeeded today only on the basis of “good arguable case”.

31. It is not possible to finalise matters today. Careful consideration needs to be given to the bespoke drafting of terms (this is not a case where [APPELLANT] standard terms are in any way appropriate) to meet the concerns I have identified in respect of security, access and noise.

DIRECTIONS

32. The Claimant shall return the travelling draft agreement showing which of the amendments are accepted and which are disputed clearly marked, by 4 p.m. on 20th March 2025.

33. The Respondent shall return the travelling draft by email showing any proposed amendments and any counter proposals clearly marked, by 4 p.m. on 25th March 2025.

34. Paragraph 26 Reference to be relisted for final determination on 4th April 2025 at 10 a.m. by way of remote video hearing with a time estimate of 1 hour.

35. Parties shall file a Schedule of terms remaining in dispute setting out [APPELLANT] proposed wording and Respondent’s proposed wording and a further column for the Tribunal’s determination no later than 3 days before the hearing.

36. Costs in the reference.

D Jackson Judge of the First-tier Tribunal

Either party may appeal this Decision to the Upper Tribunal (Lands Chamber) but must first apply to the First-tier Tribunal for permission. Any application for permission must be in writing, stating grounds relied upon, and be received by the First-tier Tribunal no later than 28 days after the Tribunal sends its written reasons for the Decision to the party seeking permission.