There’s nothing more that Health & Safety people love than pieces of legislation! So, imagine our shock when we heard that the Government was planning to revoke over 52 pieces of Health & Safety legislation. It was enough for Lindsey Roberts and Kevin Wright from our Health, Safety, Quality and Environment (HSQE) team to don their finest, head to Parliament and have their say at an All Party Parliament Group meeting!

Today many pieces of legislation are based on, as one MP quoted, “a cut and paste” of EU legislation. Following the referendum to leave the EU, the Government has been deciding what to do with the UK legislation. In 2018 a new act was passed, which allowed for Retained EU Law until December 2023. After that date, all legislation will, in theory, be removed from the UK statute books.

One piece of legislation of particular interest to Cornerstone is the Working at Heights Regulations 2005. These affect our infrastructure’s acquisition, design, build and maintenance, as all our customers’ antennas need to be at ‘height to work’. Since their introduction, these regulations have contributed to a significant reduction in fatalities and serious injuries. This reduction is due to the principles of ensuring that workplaces at height are designed and built with prevention and protection measures in place.

The same principles apply to Cornerstone’s safety model, supported by our design guidance and the HSQE team, who review site planning documents and audit site works to ensure regulatory compliance.

Against this background, Cornerstone was invited to the All-Party Parliament Group (APPG) meeting, consisting of MPs, the Health & Safety Executive (HSE) and an Access Industry chairperson. Both Lindsey and Kevin asked the panel questions about the influence of the APPG on the Secretary of State in his decisions on the future of the regulation. They also sought clarity on the percentage of prosecutions from the HSE compared to other legislation to understand the relative effectiveness of the Working at Heights regulations.

The chair of the meeting, Alison Thewliss MP, said that she found the questions “incredibly helpful” and would assist her in her conversations with the Secretary of State who will make the final decision on whether the Working at Heights Regulations will be amended, repealed, or replaced.

The opportunity for Cornerstone’s inclusion in these consultations, which can potentially change UK legislation, is a great honour. It also demonstrates our values of Inspiring Transformation, Delivering Excellence and Stronger Connections.

In fact, we have just heard that the Government has decided to have a major rethink on revoking the legislation…result!

Read the latest here https://www.ioshmagazine.com/2023/04/13/government-has-major-rethink-over-retained-eu-bill

The Building Safety Act 2022 (BSA) sets out safety requirements for those who own and manage higher-risk buildings. Some of the main provisions of the BSA came into force on 1 April this year. 

Our Head of HSQE at Cornerstone, Lindsey Roberts, provides an overview of the BSA and gives us insight into what Cornerstone is doing to help duty holders discharge their obligations. 

What is the Building Safety Act?

An Independent Review of Building Regulations and Fire Safety post-Grenfell fire revealed that the existing framework of legislation was insufficient and disjointed. Consequently, there needed to be more accountability. The BSA received Royal Assent in April 2022, which applied to buildings at least 18 m or seven storeys high or with two or more residential units, including those with mixed-use. It addresses the risks associated with building design, construction and management.  

What is Cornerstone doing about the Act?

The safety and standards of how we place our infrastructure on buildings are paramount; being aware of how equipment installations interface with building safety measures and being able to assure site providers is essential.  

At Cornerstone, we have taken a proactive approach to implementing the BSA into our work practices. We have set up a BSA working group to work through what is needed and how we manage the new requirements.

Considering what the new BSA demands, we focus on providing information that will form part of the Golden Thread of Information. The Golden Thread of Information in the BSA is about managing the relevant data regarding design and build, which is required for understanding a building’s safety. It also includes how the information should be digitally available to all appropriate parties to communicate and access when needed. The working group will examine how Cornerstone assesses its equipment and how best to inform others of relevant safety controls.  

We want to assure our landlords that we are working to the standards required for them to comply with the BSA. 

How does the Act impact Cornerstone?

The BSA states clear responsibilities and accountabilities for those involved in the design, build and maintenance of buildings. To enable digital connectivity across regions, we deploy our infrastructure on buildings, e.g., rooftops. In some circumstances where Cornerstone has a repairing obligation, it could be an Accountable Person under the BSA for that area, working with other Accountable Persons responsible for different parts of the building. The equipment installed has to be considered as part of the overall risk profile of the building. Cornerstone will support those with statutory responsibilities under the BSA to understand any impact of its equipment and how to manage any related safety risks. Cornerstone is part of the process leading to the production of a Safety Case Report, which the Principal Accountable Person will need to submit to the Building Safety Regulator to demonstrate how they manage structural and fire safety risks in their building. 

Are there any other roles and responsibilities introduced within the Act?

The Building Safety Regulator is a new body overseeing building safety. It will be responsible for implementing the new regulatory regime and have the relevant powers to enforce the BSA. These include being able to stop construction, prohibit occupation, request for the implementation of additional safety measures and ultimately prosecute for non-compliance.  

How can we work together as an industry to implement the Act effectively?

Relevant organisations and individuals must become familiar with the BSA requirements. There are resources available that guide how to implement the Act. 

Here are some useful links: 

https://www.gov.uk/guidance/the-building-safety-act

https://www.hse.gov.uk/building-safety/how-to-prepare.htm

https://www.hse.gov.uk/building-safety/prepare.htm

https://www.hse.gov.uk/building-safety/regulator.htm

The Supreme Court has handed down its judgment in two Cornerstone appeals on the meaning of the term ‘occupier’ as used in the Electronics Communications Code (“Code”) – those appeals being known as Compton Beauchamp and Ashloch.

Cornerstone’s appeals were heard alongside an appeal by On Tower and considered whether an operator, which already has electronics communications apparatus installed on land, can acquire new code rights from the landowner. The acquisition of new rights is vital to the roll out of telecommunications technology and improving connectivity in the UK.

The meaning of ‘Occupier’

Operators seeking new Code rights over land must obtain them either by agreement with ”the occupier of the land” or by asking the Court to impose rights under Part 4 of the Code. The question of who is ”the occupier” became crucially important because paragraph 9 of the Code says that a code right may only be conferred on an operator by the occupier of the land.

In earlier decisions, the Court of Appeal determined that, when an operator installs its equipment on the land, the operator itself will often become the occupier. It will, therefore, be unable to grant itself new rights; and so, cannot use the Code to obtain new rights at all.

Although the operator may be able to acquire new rights at the end of the term of its existing agreement through a renewal under the Landlord and Tenant Act 1954 or Part 5 of the Code, it would not be able to acquire additional code rights during the term of the existing agreement – even by consent. If the current agreement was incapable of renewal by either means, it would remain forever locked out of the Code leaving operators (and their networks) in an uncertain position.

Cornerstone’s arguments

Cornerstone argued that:

• an operator is always able to acquire code rights under Part 4, whether the term of its existing agreement has expired or not;
• the operator is never the occupier – its apparatus and any agreement it has over the land already should be completely disregarded when considering who was occupying the land (or, alternatively, that only an operator with a right to control the land could be an “occupier”);
• the policy behind the Code was to provide operators with a speedy and cost-effective means of accessing code rights in order to maintain and extend coverage;
• various parts of the Code clearly implied that an operator in occupation could acquire new rights under paragraph 20.

Supreme Court Judgment

The Supreme Court decided that:

• the word “occupier” has different meanings depending on the context in which it is used and it is inherent in paragraph 9 of the Code that the “operator” who seeks a code right over an existing site must be different from “the occupier of the land”;
• an operator’s own occupation of land (if any) should be ignored where that operator seeks new code rights over an existing site;
• an operator can, therefore, reach a consensual agreement for additional rights with the landowner, or have additional rights imposed by the Court under paragraph 20 of the Code, during the term of an existing agreement; and
• the correct landowner will usually be the person who conferred the rights to install to begin with, or their successor.

However, it also decided that:

• during the term of a valid existing agreement, paragraph 20 can only be used to impose additional code rights and not to modify existing rights;
• once a renewal under Part 5 has become available to the parties, that is the only route by which the operator and the site provider may agree to modify, renew or terminate code rights;
• the Code does not require that all occupation of any operator with apparatus on land be disregarded – only the occupation of the operator seeking a new code right itself.

The Outcome of the Appeals

In Compton Beauchamp, at first instance, it was accepted that Vodafone was in actual occupation of the site rather than Cornerstone which sought the code rights. The Court’s determination meant that Vodafone should itself have sought the rights from the landowner, not Cornerstone. Due to this technicality, the Compton Beauchamp appeal was dismissed.

However, the reasoning of the Court of Appeal on the occupying operator problem has been unanimously overturned which is good news.

This means that, where an operator currently has no rights over an existing site, it can obtain a whole new agreement under Part 4 of the Code. Further, where it has a valid existing agreement, it can acquire new rights in addition to those it already has pending the renewal of that agreement. Given that so many code agreements are very out of date and limit the apparatus an operator may deploy, this allows operators to access much-needed rights to upgrade and share sites.

Accordingly, in the On Tower case, where the operator was itself in occupation and seeking code rights from the landowner, the operator’s occupation was disregarded and it could validly seek new rights from APW. Therefore, On Tower’s appeal was allowed.

How exactly the Supreme Court’s primary conclusion applies in scenarios where the operator enjoys a continuing 1954 Act tenancy over the site remains to be seen. The Ashloch appeal, whilst heard with the other appeals, is yet to be finally determined, the Court having requested further submissions on the extent to which Cornerstone was seeking new rights or a modification of its existing agreement.

What this means for Cornerstone

Although the appeal on Compton Beauchamp was ultimately dismissed, the Supreme Court has agreed with our interpretation that an operator in occupation seeking new code rights can obtain them under Part 4 of the Code from the landowner, even during the term of a valid unexpired agreement. This decision should help to now clarify the uncertainty that has lingered in this space and provide operators with the ability to ensure that their sites are fit for purpose and able to deliver the connectivity which the Government and the public expect.

A link to the judgment can be found at: https://www.supremecourt.uk/cases/docs/uksc-2019-0225-judgment.pdf

The Electronic Communications Code came into effect in 2017 but some uncertainty on the legislation changes still continues today. At Cornerstone, we want to help provide a better understanding of why the Code was updated and how it helps to deliver better connectivity in the UK.

Cornerstone’s Head of Strategic Legal Projects & The Code Programme, Carlos Pierce explains the differences between the old and new Code and provides a vision on how current debates can be resolved between landlords and telecom operators.

Electronic Communications Code

Carlos Pierce and Tina Middleton look at the recent decision in Cornerstone Telecommunications Infrastructure Limited v Richard Gregory Keast [2019] UKUT 0116(LC) where Cornerstone successfully argued that:

• Ownership of apparatus (including masts) does not pass to the landowner when that apparatus is installed pursuant to Code rights
• An operator e.g. Vodafone, Telefónica, Cornerstone, can seek Code rights over land even if there is existing electronic communications apparatus installed on the land
• Code operators whose Ofcom Code powers direction prior to the introduction of the Code was for the purposes of providing a “system of conduits” are now treated as having Code powers for the provision of a “system of infrastructure”.
• The Tribunal has jurisdiction to impose terms that the operator seeks but whether such terms will be imposed will depend on the Tribunal’s discretion.
• In the battle of the cheeses, Cheddar came out on top..!

The decision will be welcomed by both operators and landowners and will hopefully facilitate discussions on agreement terms. Read the full article here.

The Electronic Communications Code (ECC) is in a transitional period and at Cornerstone, we see the importance of keeping our audiences up to date on all progress. The following joint statement extract from DCMS, RICS, CLA and Mobile UK reaffirms their commitments to the Electronic Communications Code.

– Statement Begins –

The reformed Electronic Communications Code (ECC) came into force in December 2017 with the aim of boosting coverage and connectivity across the UK, through a package of measures which Government expects to deliver significant cost reductions to the sector while ensuring that landowners receive a fair payment for allowing their land to be used.

Since the new legislation was introduced, there have been problems with negotiations progressing. While some initial uncertainty is to be expected, Government, regulators, the telecoms sector, independent infrastructure providers and the landowner community, recognise the importance of all parties working collaboratively together, both during this transition period and moving forwards.

We are therefore coming together to reaffirm the commitments made to each other in Ofcom’s Code of Practice, and to reiterate our support for the Government’s ambition to be a leading global economy underpinned by world-class full fibre network and 5G infrastructure. It is essential that parties engage professionally in open and constructive communications. The future needs of customers and the economy are too important for it to be otherwise.

– Statement Ends –