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National Security and the Electronic Communications Code

EE Ltd and another v London Underground Ltd [2021] – summary

In May, the Upper Tribunal, handed down another decision in favour of telecoms operators; this time, EE and Hutchison 3G Limited (“the Operators”). It granted the Operators interim rights of access, under paragraph 26 of the Electronic Communications Code, to enter into one of London Underground’s main operational buildings to assess the suitability of its roof for the installation of telecoms apparatus.

London Underground’s main control centre for trains is at Palestra in Southwark, which has a large, high, flat roof. The Operators had requested access to undertake a multi-skilled visit (MSV) to investigate whether the site would be suitable for telecoms equipment. The Operators wanted to access the premises for a period of three months. Each visit was to take one hour, 48 hours’ notice having been given each time.

London Underground opposed the MSV on the basis of security issues and the risk to critical national infrastructure’. It claimed that it did not have the resources to supervise the site visits and that allowing access to London Underground infrastructure could pose a serious security risk. They feared that “someone coming into the building might insert a USB stick into a computer and either download some critical information or upload some virus, or otherwise do some mischief”. In response, the Operators argued that the only prejudice suffered by London Underground was inconvenience; provision of staff to accompany the Operators would alleviate the security concerns, and financial compensation would be offered.

EE Ltd and another v London Underground Ltd [2021] – judgement

Despite London Underground’s concerns, an order was granted in favour of the Operators. The tribunal held that, with cooperation between the parties, it was possible for the MSV to take place without compromising on security.

The tribunal considered the provisions of paragraph 21, Electronic Communications Code, which allowed for interim code rights where:

  • the prejudice caused was capable of being adequately compensated by money; and
  • the benefit to the public of making the order outweighed the prejudice caused.

In relation to the first limb the Judge said “I do not accept that what is proposed by the claimants would expose the building to an appreciable risk of sabotage, nor that extending the number of individuals with knowledge of the building and what it is used for…would increase such a risk”. It was held that the use of staff to accompany the Operators was not a significant diversion away from their usual duties, and that the concerns were capable of being addressed by the imposition of certain conditions, and financial compensation.

The interim rights were required because the Operators needed a replacement site for their telecoms apparatus (which had to be removed from another nearby building). The Operators had argued that without relocation, its customers would receive a reduced service, lack of data services and an adverse impact on performance of emergency services communications which was supported by the EE network. The Court agreed and held that the second limb had been satisfied; there was a public interest in granting the rights.

What does this mean for building owners?

The circumstances of this case are unique and most people reading about London Underground’s security concerns would likely think that they would prevail. We are led to believe that even a mention of “national security concerns”, is enough to trump everything else. Apparently not.

This case highlights, once again, the sea change towards the rights of Telecommunications Operators which was set in motion by the Electronic Communications Act. It reaffirms recent decisions which have gone in favour of the operators (including one which confirmed that a right of access to carry out an MSV is an interim Code right: University of London v Cornerstone Telecommunications Infrastructure Ltd). Ultimately, it is another example of Court’s reluctance to limit the rights of operators under the Code.

The decision also demonstrates that rights will be granted if the conditions under paragraph 21 of the Code are satisfied, in particular that the public benefit outweighs the prejudice caused. Even if there are risks to a building owner, the rights will be granted if these risks can be addressed by imposing conditions. Building Owners and operators will be required to cooperate to find creative solutions where there are access issues to address.

It should be noted, however, that the case concerned the imposition of interim rights: the right of access to assess suitability only. The outcome of the case may have been different if the application had been made for permanent rights under the Code – such as the siting and installation of equipment – as the risks may have been more difficult to manage. This was acknowledged in the judgement. However, ultimately, the grant of interim rights should not be prevented due to the concerns over the grant of permanent rights.

It remains to be seen whether Palestra is ultimately deemed suitable for the equipment. If it is, watch this space!

Further information

If you would like to learn more about this case and our Real Estate services, please speak to your usual Druces representative or contact:

Jamie Coulthard at +44 (0)20 7216 5599 or j.coulthard@druces.com