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

The issue in principle51.It goes without saying that an operator is responsible for the safety of its site. On Tower, and the other operators who use its apparatus, are at risk of both tortious and criminal liability in the event that something goes wrong at their sites. Paragraph 25 of the Code ensures that if the site provider suffers any loss or damage as a result of the presence of the site, the operator must compensate it; moreover On Tower has additional contractual liabilities to APW as set out above (paragraph 48). The clear policy and the undoubted effect of the Code and of the general law is that if something goes wrong as a result of the presence of the site, the operator picks up the tab.52.But what responsibility does a site provider have for the safety of a telecommunications site on their land? Can they be sued, or be criminally liable, if someone is injured by the equipment on the site or by work done there?53.If the answer is that they can be sued, or be criminally liable, then it is no comfort to the site provider that the operator is primarily liable. An injured party will sue both if possible; and criminal liability will not be averted by the fact that the operator is also liable. Moreover, if criminal liability is a possibility, that is something for which money cannot compensate the site provider.54.APW justifies its requirement for a number of clauses in each lease on the basis that it needs to protect itself from the risk of being held liable, and potentially criminally liable, for the safety of the sites. It therefore requires On Tower to provide the details of everything it proposes to do when it has access to the sites, including method statements and risk assessments for every visit and the identity and qualifications of everyone who attends. Its requirements are not all set out in the lease but are part of what has to be provided to APW’s access portal, which APW wants On Tower to be obliged to use. For the same reason APW wants access to the sites to be limited to business hours – its position changed during the hearing to an undefined “reasonable hours” - except in emergency, and to be subject to notice requirements. Only thus, APW says, can it both prevent liability by ensuring safe practice, and only thus can it have the information it needs in order to defend itself if a claim, or a criminal charge, is brought. This has an impact upon the consideration APW seeks; its position is that although it does not make a direct charge for access to the sites, the use of the access portal is a considerable benefit to the tenant which should be reflected in the consideration paid for the rights granted over the site. 55.On Tower resists these requirements, which it says cause delay and expense and are an unnecessary restriction on the access and the operational flexibility that it requires, and an unnecessary duplication of the safety work that it does itself. Much of the cross-examination of Mr Ward focused on the extent to which the way that APW manages access is a benefit to the tenant; the argument for On Tower is that it gets no benefit from the management role that APW claims – indeed, it is an added burden – and therefore even if it has to use the access portal and comply with APW’s requirements it should not have to pay for burden of doing so.56.Some of APW’s concerns arise from the nature of its own business. Before examining that, we look first at the issue of responsibility for safety as a matter of principle, in the context of a site provider who has granted to the operator exclusive possession of the site. 57.It is no part of the policy of the Code that such a site provider be responsible, let alone criminally liable, for the safety of a telecommunications site on its land. There was no suggestion of any risk of such liability under the pre-2018 Code. Had there been any fear of such liability on the part of site providers the Law Commission would have heard about it from its consultees, and it did not. Under the present Code the idea that the site provider is to share with the operator the responsibility for the safety of the equipment and operations on the site is even less plausible than it was under the old Code. Not only are most site providers without expertise in relation to telecommunications, but also they now receive consideration calculated on the “no network” assumption, which is markedly less generous than was consideration under the old Code. It would be implausible and unfair that they should be at risk of civil or even criminal liability if someone is injured as a result of, say, tools falling into a drop zone or a mast collapsing. 58.The fear of civil liability for site providers is wholly unrealistic where the Code agreement requires them to give up exclusive possession of the site and gives them no control over what goes on there. In those circumstances liability in negligence or under the Occupier’s Liability legislation is not possible. Nor can there be liability for what happens on the way to the site, where the landowner retains possession of the access way, if the Code agreement gives the landowner no say in what the operator does on the land that gives access to the site. If the operator’s employee digs up the farm track, the operator and not the landowner is vicariously liable.59.It is of course open to the parties to agree terms that enable or oblige the site provider to control, manage, or even supervise what the operator does and to have a say for example in how its contractors operate. But unless the parties do so, or unless the Tribunal imposes such terms, then concerns about civil liability are illusory.60.For APW it is argued that concern about criminal liability arises from the Health and Safety at Work Act 1974. Duties owed under health and safety legislation are non-delegable. Section 3 provides as follows:“(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.(2) It shall be the duty of every self-employed person who conducts an undertaking of a prescribed description to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.”61.The statute goes on to provide that it is an offence not to discharge that duty. The section is concerned with risk, and therefore can be broken even if no accident has occurred. The risk must be material, which means a risk that any reasonable person would appreciate and take steps to guard against; such risks may not be obvious and so employers must think deliberately about risks that are not obvious (R v Tangerine Confectionery Limited and Veolia ES (UK) Limited [2011] EWCA Crim 2015, paragraphs 24, 25 and 36). Where it is proved that the conduct of the employer’s undertaking has exposed one or more non-employees to material risk, the employer will be criminally liable unless it can prove, on the balance of probabilities, that it was not reasonably practicable to prevent the risk (Tangerine at paragraph 30).62.The duty is to protect persons affected by the conduct of the undertaking, which in this context means “enterprise” or “business”. Clearly for the vast majority of site providers what goes on at a telecommunication site on their land is not part of their undertaking. We return below to the position of APW and other site providers whose business is the provision of sites and equipment for telecommunications. But in general, site providers cannot be liable under this provision. 63.Section 4 of the 1974 Act may be relevant to site providers who have granted exclusive possession of the site but who retain control of access. It creates duties for persons who make non-domestic premises available to others for work:“(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.”64.Again, breach of that duty is a criminal offence. The key concept in section 4 is control. More than one person may be in control of premises or of the means of access to them, and the duty is imposed upon all of them. Liability does not arise out of ownership alone, but the ambit of section 4 is far wider than that of section 3 and any degree of control is sufficient (Austin Rover Group Limited v HM Inspector of Factories [1990] 1 AC 619, 634A to 635E. In addition, where a person has responsibility for the maintenance and repair of premises or of the means of access to them, section 4(3) provides that that person is to be treated as having control of the matters to which that obligation extends.65.Site providers who have granted exclusive possession of a site will often remain in possession of the access to the site, such as a farm track, or a lift or staircase giving access to a rooftop. With or without the Code agreement, such a landowner is in control of that means of access and has a duty is to ensure that the “means of access [to the premises] or egress therefrom” is safe so far as is reasonably practicable. But the extent of the duty depends upon the site provider’s ability to make the means of access safe; where a site provider is not entitled to any say in what the operator does while it is using the access to approach the site it will not be reasonably practicable for it to prevent the operator from doing something that makes the access unsafe. The duty under section 4 arises from control; it is not the case that the need to control arises from the possibility that there is a duty.The issue in the present references: does the nature of APW’s business, or the terms of the intermediate leases, make a difference?66.For APW it is argued that it must manage access to the three sites and check method statements and risk assessments and the identity and qualifications of the personnel involved in order to avoid liability. The reasons given relate first to the nature of APW’s undertaking, and second to the requirements or expectations of the superior landlord.67.The nature of APW’s undertaking is relevant because liability under section 3 of the 1974 Act arises from the way a person conducts their undertaking. We agree that APW is, as Mr Clark puts it, a professional site provider for the purposes of electronic communications networks. Mr Clark goes on to say that APW “carries out a management function including managing access to its portfolio of sites,” and no doubt that that is true in relation to some of the sites it lets, where the terms of its agreement with the operator give it a management role. But the question is whether the terms imposed by the Tribunal must give it the ability to carry out that management function because the nature of its undertaking means that it is at risk of criminal liability for the safety of the sites. 68.Mr Clark’s argument was that the operation of the sites that are the subject of this reference is part of APW’s undertaking, and that it cannot absolve itself of its duties under section 3 of the 1974 Act by passing them over to On Tower. Mr Clark cited R v Associated Octel Co Limited [1994] 4 All ER 1051.69.In Associated Octel the defendant, Octel, operated a chemical plant. It used contractors to repair the lining of a tank; the contractor’s employee was cleaning it with acetone when an electric light bulb above the tank broke. The acetone vapour caught fire and the employee was badly burned. Octel was prosecuted for breach of section 3 of the 1974 Act. It was held that the fact that the work was done by a contractor was irrelevant. The work was part of Octel’s undertaking. It was therefore responsible for the safety of the work done in the factory that it operated; it had to take reasonably practical steps to avoid risk to the contractor’s employees from the physical state of the premises and from the adequacy of the arrangements made with the contractors about how they did their work. 70.The key to that decision is the fact that Octel was operating the chemical plant. It therefore had duties under section 3, which it could not get out of by passing them to a contractor. 71.Lord Hoffmann, with whom the other members of the House of Lords agreed, remarked that where for example an employer sent the office curtains to the dry cleaners, that did not make the dry cleaning part of its undertaking. Reverting to the facts before us, where APW is itself operating a telecommunications site, or where it has leased a site to another operator and is – by virtue of the terms of the Code agreement – involved in the arrangements made there for safety then it may well have duties under section 3 subject to the defence of reasonable practicability. But if it has no right to be on the site and no right to control what happens there then the operation of the site is not part of its undertaking and the duty under section 3 does not arise.72.Put another way: the fact that APW’s undertaking does include the management of some telecommunications sites does not mean that the operation of every site of which it is the site provider is part of its undertaking.73.Mr Clark’s argument therefore puts the cart before the horse. The fact that APW manages some of the sites that it has let does not mean that it is responsible for the safety of all the sites it lets. Where the Code agreement does not permit APW to manage or control the site then the operation of that site cannot be said to be part of APW’s undertaking, and it has no duty under section 3 of the 1974 Act in relation to such sites. Mr Clark suggests that if On Tower’s mast fell and injured somebody, “HSE might ask APW what steps it took as the site provider to reduce the health and safety risk the injured person was exposed to.” So it might. But if the answer was “none, because we have no right to do anything on site or to do anything about what happens on site” then that is a complete answer to the question. The Tribunal is entitled and obliged to assume that the Health and Safety Executive would respond rationally to such a situation.74.Analogous reasoning applies to the duty under section 4 relating to the access to a site. The duty arises from control, and the extent of the duty if it does arise depends upon what it is practicable to do there. What APW or any other site provider can (and therefore should) do depends upon the terms of the Code agreement. One of APW’s arguments is that On Tower itself is a site provider, and in relation to the sites that it lets it exercises a management function and supervises the safety of the operations carried on there. Therefore it is said that APW should do the same. But what On Tower or any other operator does by agreement with its lessees is a very different matter from what the Tribunal will impose.75.Mr Atkins argues that the site provider’s liability will depend, among other factors, upon the scope of its undertaking (section 3) and the extent of its control (section 4), and says:“These are questions of fact to be determined on a case-specific basis. The HSE, as the enforcing authority, would be entitled to take into account not only the strict terms of any contractual or lease arrangements, but also the way in which the parties operate in practice. There is no way to know in advance of a criminal investigation or other enforcement action what view HSE might take in relation to the scope of the undertaking or control.”76.We agree that HSE would of course take into account what the parties actually do in practice. If a site provider is given control, whether by a consensual Code agreement or by the parties’ own operating practices, then a duty will arise commensurate with that control. If the Tribunal imposes terms that give the site provider no role in the operation of a site and no control of the access to it, but the parties themselves agree that the site provider shall check the method statements and risk assessments, then of course a duty may arise. But that is not the point. The question is whether the Tribunal should impose terms that enable the site provider to control access and to check safety, on the basis that HSE will expect or even assume that that is what the site provider does on all its sites because it does so on some of its sites. The argument is perilously close to saying that such terms have to be imposed because HSE will get it wrong. It would be irrational to impose terms on that basis.77.Mr Atkins adds that “In the event of exposure to risk on site, it would be for the HSE to consider whether it was at least partly attributable to the way in which the Respondent has carried on its activities (for example, by granting the lease, or granting it on particular terms…)”. That is, again, beside the point in this case where the terms will be those required by the Tribunal rather than being APW’s choice. Mr Atkins was unable to point to any prosecution of a site provider in the context of a telecommunications lease.78.We have of course yet to set out our decisions on the various terms of the drafts leases that will determine the extent to which the new agreements are to give APW any involvement in or control of what goes on at these three sites. There may or may not be reasons for a site provider to have an involvement in the management of a site. In the absence of any such reasons the site provider will not be required or enabled by the Tribunal to manage or control operations on the site, because that duplicates the operator’s work, causing it delay and expense and thereby going against the objectives of the Code, and also because it potentially exposes the site provider to liability. It is not the case that the site provider has to be given an involvement or a degree of control in order to protect it from liability; that is the wrong way around. We have to start from the other end of the problem by asking what involvement APW has to have in the site or in the access to it.79.That brings us to the second reason why it is said that APW has to control the safety of the site and of access to it. It is said that the superior landlord in each case requires APW to control access and to manage the sites and that one of the reasons why it granted the intermediate leases was in order to pass this task to APW.80.If that were the case then it would still be necessary for us to consider to what extent it was right to impose on On Tower the control that the superior landlord wanted APW to exercise, bearing in mind the need to cause the least possible loss and damage to the superior landlord and to APW, as well as On Tower’s operational requirements.81.The difficulty for APW’s argument, however, is that a perusal of the intermediate leases reveals that APW has no responsibility to the superior landlord either to guarantee the safety of the sites or to manage or restrict access to them. Management and supervision of the site is not mentioned in the intermediate leases. APW is to enforce the covenants in the existing leases, but there is no requirement to check or to guarantee compliance with those covenants. That is the case despite the fact that the superior landlord is relinquishing its direct relationship with On Tower and will have no privity of contract or estate with any future sub-tenant of APW. There is no covenant that the site will be operated safely, nor any indemnity given by APW to the superior landlord.82.As to access, APW is given unrestricted access to each site. True, two of the leases say that APW “shall be responsible for all reasonable access requests to the Property by the Undertenants” (see paragraph 38 above); but that does not require APW to restrict access. In any event none of the existing leases requires On Tower to make a request before going on to the site. As to future leases, APW is given unrestricted access and is left free to confer the same right on its own lessees. 83.Mr Clark argues that the reason why APW is given unrestricted access is so that it can control access by On Tower. But the intermediate leases do not require APW to exercise that control. Each would enable APW itself, or its assignee, to carry on business in the site if On Tower left, operating a telecommunications site at Audley House or a business of its choice (subject only to planning requirements) at Port Talbot or Huntingdon, without any restriction on its access.84.If these were sites where access needed to be restricted, checked, logged or otherwise controlled, whether because of the nature of the business carried on there by the superior landlord, because of residential occupiers, or because of the vulnerability of other persons on the surrounding land, then the intermediate leases would contain provision about that and we would have to assess whether it was right to reflect any or all of such provision in the new leases. But the intermediate leases reveal no concern at all about access to the sites, whether by an undertenant, a future undertenant, or by APW or any successor in title to APW (as to which, as we noted, the superior landlord has no control at all since APW can assign or charge its interest without consent). There is no evidence that the superior landlord has imposed any responsibility upon APW to control the safety of the sites or the access to them. If it had, we would then have to consider whether those responsibilities should be reflected in the Code agreement; but it has not and therefore APW’s relationship with the superior landlord is not a reason for the Tribunal to impose terms that make APW responsible for safety at the sites.