First-tier Tribunal Grants Operator Interim Rights for Multi-Skill Visits

OUTCOME: Allowed

Case reference : BIR/00CN/EIA/2025/0684

Subject premises : [ADDRESS], Mitcham

registered under Land Registry title

number TGL55881

Claimant : [redacted] (Operator)

[RESPONDENT] : [COUNSEL] LLP

Respondent: [redacted] (Site Provider)

of the London Borough of Merton

Representative : [COMPANY] of [NAME] : Electronic Communications Code

Paragraph 26 (MSV)

Date of hearing : 3 October 2025

Tribunal member : Deputy Regional Judge Nigel Gravells

Date of decision : 3 November 2025

_________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2025

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Introduction 1 This is the Decision of the First-tier Tribunal on a Reference dated 30 June 2025, including an [NAME] pursuant to paragraph 26(1) of the Electronic Communications Code (Schedule 3A to the Communications Act 2003) (‘the Code’). 2 The Claimant is an ‘operator’ within the meaning of paragraph 2 of the Code. More specifically, the Claimant does not provide an electronic communications network of its own: rather it installs and maintains an infrastructure system (as defined in paragraph 7 of the Code) to providers of electronic communications networks. 3 The Claimant seeks interim rights to carry out multi-skill visits (‘MSVs’) (including intrusive works) to assess the suitability of the subject premises, which comprises a car park with 44 spaces (including five bays reserved for disabled drivers), for the installation and operation of electronic communications equipment. 4 The Respondent is the registered proprietor of the freehold of the subject premises. The legal background 5 The Electronic Communications Code regulates the legal relationship between mobile telephone operators (whether providing a phone signal or physical infrastructure) and the landowners on whose land electronic communications equipment is to be placed. The Code provides protection for landowners while seeking to protect ‘the public interest in access to a choice of high quality electronic communications services’: see paragraph 21 of the Code. 6 Code rights are conferred upon operators by agreement with the occupier of land (paragraph 9), and an agreement may be imposed by an order of the Upper Tribunal (paragraph 20). However, paragraph 26 makes provision for interim Code rights, which can only be created by the Tribunal imposing an agreement upon the parties. 7 The test that an operator must satisfy in order for the Tribunal to impose an agreement conferring Code rights under paragraph 20 is set out in paragraph 21 of the Code – (1) … the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met. (2) The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money. (3) The second condition is that the public benefit likely to result from the [NAME] of the order outweighs the prejudice to the relevant person. (4) In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services. 8 For interim rights under paragraph 26 the operator need only show that it has a ‘good arguable case’ that that test is satisfied. In the present case it is not disputed that the Claimant has such a case and the Respondent does not oppose in principle the imposition of an interim Code agreement.

9 Interim Code rights can be conferred in the absence of an [NAME] under paragraph 20; and they are often sought, as in the present case, as the basis for the operator to carry out the investigation that is needed before deciding whether or not to seek the right to place equipment on the site. 10 Such an investigation is known as a ‘multi-skilled visit’ or MSV. It may be a simple visual inspection; or (as in the present case) it may also involve intrusive works that penetrate the fabric of the premises. 11 Whether Code rights are sought under paragraph 20 or paragraph 26, the terms on which they are conferred are determined by the Tribunal in light of the provisions of the Code. Paragraph 23 refers to an order under paragraph 20 but with some modifications it also applies to an agreement for interim rights (paragraph 26(4)). So far as relevant, paragraph 23 provides – (1) An order under paragraph 20 may impose an agreement which gives effect to the code right sought by the operator with such modifications as the court thinks appropriate. (2) An order under paragraph 20 must require the agreement to contain such terms as the court thinks appropriate, subject to sub-paragraphs (3) to (8). … (5) The terms of the agreement must include the terms the court thinks appropriate for ensuring that the least possible loss and damage is caused by the exercise of the code right to persons who— (a) occupy the land in question, (b) own interests in that land, or (c) are from time to time on that land. The factual background 12 The Claimant first contacted the Respondent on 17 July 2024, seeking access to the subject premises on a consensual basis. However, following inconclusive negotiations between the parties’ agents, both parties instructed solicitors. 13 On 2 April 2025 the Claimant served a paragraph 26(3) notice on the Respondent. 14 On 30 June 2025 the Claimant made the present reference to the Tribunal. 15 On 23 July 2025 the First-tier Tribunal scheduled a case management hearing for 3 October 2025 with an indication that the paragraph 26 [NAME] for MSV rights would be determined on that occasion if that proved to be possible. 16 The hearing took place on 3 October 2025 by remote video conference. The Claimant was represented by [COUNSEL] of Counsel (instructed by [COUNSEL]) and the Respondent was represented by [COUNSEL] of Counsel (instructed by [NAME]). Determination of the Tribunal 17 In determining the issues in dispute between the parties, the Tribunal took full account of the written and oral representations of the parties so far as relevant to the issues in dispute.

18 The Respondent does not object in principle to the Claimant having the interim rights sought but it does not agree to all the proposed terms of the agreement that the Claimant seeks to have the Tribunal impose upon it. The terms in dispute 19 By the time of the hearing the issues in dispute were (following the order of the draft MSV agreement) – (i) notification of the completion of MSVs (ii) limitation of nominated parking spaces (iii) definition of ‘works’ (iv) level of professional fees (v) requirements as to [NAME] good and reinstatement (vi) preliminaries to MSVs. 20 In accordance with paragraph 23 of the Code (as applied to agreements for interim rights by paragraph 26(4): see paragraph 11 above), the Tribunal is of the view that the terms of the agreement imposed on the parties should be as concise and straightforward as possible, consistent with achieving two principal objectives - first, the agreement must provide for the MSV rights sought by the Claimant; and, second, the agreement must provide appropriate protection for the Respondent. 21 The MSV operations contemplated by both parties are for the Claimant to carry out an MSV to one or more locations within the car park; that each MSV will cover no more than four adjacent parking spaces (identified in the relevant RAM); that only one such MSV will be carried out at any one time; and that each MSV location will be reinstated before the next MSV is carried out. 22 The Claimant argues that its proposed version of the MSV agreement gives effect to the contemplated MSV operations; and that the Respondent’s proposed conditions are unnecessarily prescriptive. 23 The Tribunal notes that the subject premises comprise a car park in constant use by members of the public and accepts that the Respondent is rightly concerned with ensuring minimum disruption to persons wishing to use the car park during the period of the MSV agreement. This is therefore not the more common situation where the MSV site is a roof top or other area not open to the public; and the different circumstances may be seen to justify more prescriptive terms in the agreement. On the other hand, the Tribunal is of the view that to some extent the Respondent overstates the actual and potential risks created by a MSV agreement. In the view of the Tribunal, some of the terms proposed by the Respondent are unnecessarily restrictive and/or burdensome; and to that extent they are not ‘appropriate’ for the purposes of paragraph 23(1) of the Code in the context of a MSV agreement. 24 Applying the above principles, the Tribunal is satisfied that the terms imposed by the Tribunal meet the principal objectives identified in paragraph 20 above and determines that they are the appropriate terms to be included in the MSV agreement. 25 The terms in dispute are considered in turn.

Notification of MSVs 26 The Respondent seeks to impose a requirement that for each MSV the Claimant should provide to the Respondent a written notice (‘MSV Notice’) specifying the commencement date and estimated completion and vacation dates. 27 The Tribunal determines that, given the nature and use of the MSV site, it is appropriate that the Claimant should be required to provide a MSV notice specifying the commencement date and estimated completion and vacation dates. Section 6 of the agreement addresses delayed MSVs. Nominated parking spaces 28 The Respondent proposes that the parking spaces identified for any MSV should be subject to the Respondent’s approval (not to be unreasonably withheld). 29 In the view of the Tribunal such a condition is unnecessary and inappropriate: the definition of ‘parking spaces’ excludes potentially sensitive and contentious spaces; and the RAMS procedure provides for any concerns on the part of the Respondent to be discussed and resolved. Definition of ‘works’ 30 The Respondent argues that the Claimant’s proposed definition of ‘works’ is too open-ended and lacks specificity. 31 The Tribunal accepts the argument of the Claimant that its proposed definition, which has been endorsed by the Tribunal on a number of occasions, provides necessary flexibility, is subject to the RAMS procedure and is appropriate. Professional fees 32 The proposed MSV agreement provides for various professional fees payable by the Claimant to the Respondent: [redacted] specified documents; (ii) £275.00 for undertaking the RAMS procedure and (iii) £55.00 for facilitating each MSV visit. 33 In addition, paragraph 1.2.1 provides for the payment of a fee for each MSV in respect of ‘the internal and administrative time the [Respondent] incurred in facilitating each MSV’. The Claimant proposes £55.00 and the Respondent proposes £90.00. 34 Since paragraph 1.3.1 also provides for the payment of an MSV fee (defined as ‘the fee payable by the [Claimant] to the [Respondent], calculated at a fixed rate £35.00 Parking Space per day or part thereof, for each Parking Space reserved and cordoned off by the [Respondent] at the MSV site during each MSV’) the Tribunal determines that the appropriate fee provided for in paragraph 1.2.1 is £55.00. Requirements as to [NAME] good and reinstatement 35 The Respondent proposes that the [NAME] good of any damage caused during a MSV should be carried out by contractors nominated by the Respondent ‘where possible, practical and reasonable’ (paragraph 2.1.6). The Claimant argues (i) that the Tribunal has indicated its reluctance in principle to impose supervision of professionals and (ii) that the proposed term provides for the [NAME] good to be subject to ‘the Respondent’s reasonable satisfaction’.

36 The Tribunal determines that, given the reasonable satisfaction condition, it is inappropriate to provide for the Respondent to nominate contractors. 37 However, the Tribunal determines that it is appropriate to include a reasonable satisfaction condition in the general provision on reinstatement (paragraph 2.1.20). Preliminaries to MSVs (i) Successive MSVs 38 The agreement provides for the Claimant to provide RAMS to the Respondent no less than 20 working days before a proposed MSV. 39 The Respondent proposes the additional proviso that any previous MSV must have been completed before the RAMS for the following MSV is issued. The Claimant argues that such a restriction could delay the Claimant’s programme of MSVs; and there remains the restriction that only one MSV can be carried out at any one time. 40 The Tribunal determines that the Respondent’s proposed additional proviso is too restrictive and inappropriate. (ii) Payment of MSV fee 41 The Respondent proposes that the Claimant should be required to pay the MSV fee five days before the commencement of the relevant MSV. The Claimant proposes payment no more than seven days following the relevant MSV. 42 Since the MSV fee is a daily fee, and the duration of the MSV may be greater or less than that estimated in the MSV Notice, the Tribunal determines that it is sensible and appropriate to adopt the Claimant’s proposal. (iii) Cordoning off 43 Paragraph 3.5 of the agreement provides for the cordoning off of the nominated parking spaces. 44 While the [APPELLANT] proposes that the parking spaces should remain cordoned off from the commencement of the relevant MSV until its completion, the Respondent includes an unclear reference to the estimated end date of the MSV. 45 The Tribunal determines that it is sensible and appropriate to adopt the [APPELLANT] proposal. Order 46 In order to give effect to this Decision, the Tribunal has issued a formal Order pursuant to paragraph 26 of Schedule 3A to the Communications Act 2003, imposing on the parties the Agreement annexed to the Order. Costs 47 The parties may make written representations on the issue of costs to be received by the Tribunal not later than 4.00pm on 21 November 2025.

Appeal 48 If a party wishes to appeal this Decision, that appeal is to the Upper Tribunal (Lands Chamber). However, a party wishing to appeal must first make written [NAME] for permission to the First-tier Tribunal at the Regional office which has been dealing with the case. 49 The [NAME] for permission to appeal must be received by the Regional office within 28 days after the Tribunal sends written reasons for the decision to the [NAME]. 50 If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason(s) for not complying with the 28-day time limit. The Tribunal will then consider the reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit. 51 The [NAME] for permission to appeal must state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking.

3 November 2025 Professor Nigel Gravells Deputy Regional Judge