Case No. UKUT-152-(LC)-UTLC-Case-Number:-LC-2021-240

1.What responsibility do owners and occupiers of land have for the safe operation of electronic communications sites which they are legally obliged to have on their land?2.As a general principle landowners have no more responsibility for the safety of the antennae on their roof, or the mast in the corner of their car park, than they have for the electricity pylons that march across their fields or for the public sewer that runs beneath their home. Landowners are obliged to suffer the presence of equipment and conduits on their land for the benefit of us all, but the safety of that equipment and the management of any risk that it poses for the public remains the responsibility of those who operate it. This determination of two references under Schedule 3 to the Communications Act 2003 (known as the Electronic Communications Code) in relation to three different telecommunications sites provides the opportunity for the Tribunal both to state that general principle, and to explore the question whether it might give way to other considerations where the landowner is itself in the business of telecommunications. 3.The claimant, On Tower UK Limited (“On Tower”), is a wholesale infrastructure provider. It owns sites and equipment (such as masts, conduits and cabinets) all over the UK and has licence agreements with providers of mobile phone networks which enables them to use the equipment; typically two or more operators will have their antennae on a single mast owned by On Tower. The two references before the Tribunal relate to three telecommunication sites to which we refer as “Audley House”, “Port Talbot” and “Huntingdon”. All three are small sites at ground level in industrial areas, with a mast and cabinets, which have been operated by On Tower for some years under leases whose contractual terms have expired.4.The respondent, AP Wireless (II) UK Limited (“APW”), is part of a multi-national group of companies whose business is to invest in land and let it for use as telecommunications sites. Some of its land in the UK is freehold. Much of it is leasehold, in circumstances where it has taken a lease of a site already let to an operator (by which we mean either a provider of a mobile network or an infrastructure provider) under a “Code agreement”, granted pursuant either to Schedule 3 to the Communications Act 2003, known as the Electronic Communications Code or “the Code”, or to its statutory predecessor (“the old Code”). APW’s leases are in each case longer than the Code agreement, so that APW is bound by the Code agreement and becomes a “site provider” (paragraph 30 of the Code). If the Code agreement comes to an end, any new agreement will be made between APW and the operator. That is the position on each of the three sites with which we are here concerned. There is no opposition to the grant of a new 15-year term on each site, but the parties cannot agree the terms of the new leases and therefore references have been made to the Tribunal.5.The claimant was represented by Jonathan Seitler QC and Emer Murphy of counsel, and the respondent by Wayne Clark, Fern Schofield and Mike Atkins of counsel, to all of whom we are most grateful. The two references were listed together on the basis that they are similar sites. The three days proved to be insufficient, not because three sites were involved but because so many of the terms of the leases were in dispute. It was agreed at the hearing that written representations would be exchanged about the terms, which is why in places we refer to or quote from those representations.6.In the paragraphs that follow we summarise the relevant legal principles and then set out the factual background for each site. We then explore in principle the issue of responsibility for the safe operation of telecommunications sites, before looking at the detail of the clauses in dispute. Finally we look at the consideration payable for the sites, which was agreed by the valuation experts in the course of the hearing subject to adjustments for certain of the terms.