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

140.We move now to a group of terms sought by On Tower that give it rights over APW’s or the superior landlord’s surrounding land. APW will have no surrounding land at Audley House and Port Talbot, and a very small area at Huntingdon. It is worth repeating that each of APW’s intermediate leases give it the right to access the site with or without vehicles over the superior landlord’s surrounding land, to install electricity cables and connect to service media, “all rights mutatis mutandis as have been granted [over the superior landlord’s property] to the Undertenants” and“Any other rights in under and over the Estate which are at the date hereof needed or may after the date hereof be needed to enable the Tenant to grant the Future Leases and to renew the Existing Leases or to deal with any applications by the Undertenants in respect of the Existing Leases and Future Leases.”141.Those are very broad provisions. The superior landlord has granted to APW all the rights that are “needed” for it to deal with the existing leases and to grant future sub-leases. The breadth of such an array of rights, whose extent is not yet known, also makes it somewhat imprecise. On Tower accepts that if it requires any rights that APW cannot grant it will need to negotiate with the superior landlord.The right to park on the access to the sites142.On Tower seeks the right to park on the access to the sites, and to load, unload and turn vehicles on it. It cannot park inside any of the sites at present (but will be able to park within the demised area at Audley House because of the extent of the demise in the new lease). Obviously it needs to be able to load and unload as close to the sites as possible. APW does not wish to grant an express right to park because it may disturb other users of nearby land, and may obstruct others’ access. APW says it has to have control of the access because it is potentially criminally liable under the 1974 Act if it fails to ensure that the means of access is safe and without risk to health; as discussed above, the potential for liability arises from control, and it is not the case that control has to be given in order to avoid liability.143.There is no express right to park outside the demise in any of the existing leases, although they all include the right to access the sites with or without vehicles. Likewise the intermediate leases contain no express right to park.144.Mr Seitler QC advanced a number of arguments to the effect that On Tower is likely to have acquired the right to park on the access areas already by implication. We do not have sufficient evidence to determine whether or not that is the case; such rights if they have been created already by implication would be appurtenant to the existing leases and would expire with them although of course if they were part of the existing leases by implication then they would fall within the scope of paragraph 34(12). However, we think the position can be simply analysed without the need to refer to existing rights.145.What is perfectly obvious is that On Tower and its customers need to have the right not only to drive up to the sites but also to stop their vehicles, to get out and enter the site, and on some occasions to load or unload. APW has no presence on the site and cannot possibly be caused any loss or damage by the grant of the rights to do so. Unless the Tribunal confers upon APW the right to control what On Tower does on the access APW is not responsible for what On Tower does there and need have no concerns about liability for example for unsafe loading or for the obstruction of others on the surrounding land.146.Accordingly we take the view that the leases should give On Tower the right to park on the “Access” (as defined in the leases) to the sites insofar as APW is able to grant that right. On Tower’s wording in paragraph 1.1 of Schedule 1 Part 1 (“together with the right to park load unload and turn vehicles thereon”) shall stand. Obviously in the event that any of the superior landlords takes the view that APW is not able to grant that right, On Tower will have to negotiate with, and if necessary issue a reference against, the superior landlord.147.On Tower is content for the leases to include a covenant by it not to obstruct anyone else’s use of the access in each case, and the leases shall include such a provision. 148.It is convenient to mention here that APW wants the leases to contain a provision that nothing in the lease confers any right over any neighbouring property, that nothing is to be taken to show that On Tower has any right over neighbouring property, and that section 62 of the Law of Property Act 1925 does not apply to the lease. Section 62 relates to the implication of easements on the grant of a new lease as a result of the parties’ practice before the grant of the lease.149.This is a reasonable provision for the protection or at least the reassurance of APW and the superior landlord; it protects them from unforeseen rights arising in the future, and we see no reason why APW should not have that protection. Mr Seitler QC argues that the exclusion of section 62 is inconsistent with the Code’s purpose of facilitating infrastructure deployment and maintenance and that to remove section 62 puts On Tower at risk, but we see no reason why On Tower should be entitled to rights that are not expressed in the terms of the lease when they have been negotiated and litigated in such exhaustive detail. The relevant provision – currently paragraph 5 of Schedule 1 Part 1 - shall stand.Access to the superior landlord’s property150.The draft leases (Schedule 1, Part 1, paragraph 1.2) also allow access to the superior landlord’s property (meaning land which is outside the sites and outside the defined access to the sites), for the purpose of carrying out work on the site. APW seeks an amendment to provide that this is only for “Major Works”, defined to mean ”intrusive ground works, ground re-instatement or the use of plant machinery to access, remove or deliver the installation (or any part thereof)”; and APW require seven days’ notice of such works except for “Emergency Works”, defined as quite restrictively as (we summarise) works required to ensure continuity of service following an event that could not have been anticipated.151.On Tower now concedes that it will give 48 hours’ notice of requiring access to the superior landlord’s property except in cases of “emergency or operational urgency”. It resists the restriction of such access to “Major Works” and it resists any definition of “Emergency Works”.152.The existing leases all give On Tower the right to access the superior landlord’s land, with no requirement to give notice save that 12 hours’ notice is required for access out of hours at Huntingdon, for the purpose of carrying out maintenance, adjustment, repair, replacement or renewal of the apparatus. APW’s intermediate leases grant it the same rights, and enable it to grant the same rights in future leases. So the terms sought by APW would represent a significant restriction, both in terms of the notice required and in terms of the purposes of access to the superior landlord’s land. APW says that the definition of Emergency Works and Major Works is needed for clarity, and that seven days’ notice is needed for it to liaise with the superior landlord and other neighbours such as the occupants of the office at Audley House. It is said that more than 48 hours’ notice is needed because it might be that the access required coincided with the superior landlord’s plans for example to do work in the car park.153.As to the superior landlord, the terms of the existing leases show that the superior landlord did not anticipate any difficulty with the tenant having access to the surrounding land where necessary; those leases do not reserve to the superior landlord any right to prevent access for the purposes of its own works, and nor do the intermediate leases. There is no evidence that On Tower’s use of its existing rights has ever given cause for concern to the superior landlord or to anyone else. Again this is an instance of APW seeking to create for itself a role, of which the necessity is not apparent. Mr Clark argues that APW’s “managerial role” is particularly important in this context: “to have APW (with the benefit of its industry experience) to deal with these kinds of access requests is one of the reasons landowners choose to let their sites to APW.” Leaving aside the fact that On Tower is hardly without industry experience itself, the fact remains that the superior landlord has let the land to APW on terms that enable it, and its unknown assignee who may have nothing to do with the telecommunications industry, to access the superior landlord’s land on the terms of the existing leases to On Tower. It is not the case that access has to be set up by prior arrangement in the way that APW argues.154.We take the view that there is no reason why On Tower’s rights to access the superior landlord’s land at each site should be cut down in the new leases either by a requirement to give seven days’ notice or by definitions restricting the purposes for which access may be taken. Nor is there any reason to define the emergencies that might give rise to a need for On Tower to access the surrounding land without notice. The only one of the sites where this might conceivably cause inconvenience is Audley House, and those who work in the offices will be considerably more troubled by the disappearance of their phone signal than by an additional vehicle in the car park.155.APW also seeks to provide that On Tower’s access to the superior landlord’s land is confined to land “immediately adjoining” the sites. It points out that access for example to the office building at Audley House should not be permitted. We do not want to provoke dispute by the inclusion of the words suggested, but we see no reason why On Tower would need or should be entitled to have access to a building, and indeed Mr Seitler QC says that it is inconceivable that such access would be needed in connection with work at the site. Accordingly paragraph 1.3 of Schedule 1 Part 1 shall be as drafted by On Tower, excluding the words that APW wishes to add, but with the addition of the words “other than buildings” after “the Superior Landlord’s Property”.The right to place a generator on the superior landlord’s land156.It is usual in telecommunications leases to provide for the operator to be able to use a generator on site if the mains electricity fails. Dispute usually focuses on possible disturbance from noise. The risk of that on these three sites is minimal; none is near to residential property, and the people working in the office building at Audley House are more likely to be disturbed by noise from the adjacent railway than by a generator (and indeed by the interruption of a mobile phone signal in the absence of power). There is no evidence that the use of a generator has caused difficulties at these sites in the past. 157.The existing leases of Audley House and Port Talbot say nothing about a generator and accordingly there is nothing to prevent On Tower using a generator on either site. At Huntingdon the tenant can install a generator on the site with the landlord’s prior qualified consent. 158.The draft leases set out expressly On Tower’s right to place a generator on the site (despite the fact that there is no need to make explicit provision for a tenant to bring a chattel on to the demised premises) and provide that fuel shall be safely and securely stored. APW wants that to be subject to its right to approve the generator, consent not to be unreasonably withheld, with a further proviso that it shall be deemed to be reasonable for APW to refuse consent if the proposed generator would cause “more than minimal noise or disturbance” to APW or other adjoining or neighbouring parties. APW also wants a proviso that the tenant shall use “all reasonable endeavours” to get the electrical supply reinstated and to remove the generator forthwith once it is restored.159.The need for On Tower and its customers to be able to use a generator when necessary is obvious. When the need arises it will probably happen suddenly and the need to seek approval would delay the restoration of power and of mobile phone signal; why APW would be better able to assess the suitability of the generator than would On Tower or its customers is not understood. We have to consider whether the restrictions that APW seeks are necessary to prevent or minimise loss or damage to it. Yet there is no risk of disturbance to APW itself from a generator, since APW has no presence at Audley House or Port Talbot outside the sites and will only visit Huntingdon in connection either with On Tower’s site or with the other mast. It has no obligation to the superior landlord to approve generators (there being no mention of them in the intermediate leases); its obligation is to enforce the covenants in the under-leases, which it is not prevented from doing by the absence of a requirement for it to approve a generator. We see no purpose in a provision for approval of a generator on any of the three sites and the provision for such approval is to be deleted.160.So is the requirement for On Tower to use all reasonable endeavours to reinstate the electricity supply. It is going to do that in any event, and there is no need for a covenant in the lease to ensure it does so. 161.At Huntingdon On Tower also seeks the right to place a generator on the adjoining land of APW and of the superior landlord. Again this is agreed in principle, but APW wants that to be permitted only with its prior written consent, for the generator to be in a “suitable location”, and for the location to be subject to its prior qualified consent except in case of an emergency or “operational urgency”.162.The existing lease at Huntingdon enables On Tower to install a temporary back-up generator on the superior landlord’s property in a position to be agreed.163.We see no purpose in having an explicit requirement for a “suitable location”; if On Tower places a generator in an unsuitable location it will be liable for any loss or damage caused. Nor do we see any purpose in a requirement for APW to approve the location of a generator as On Tower is at least as able to assess where the generator should go as is APW. 164.Should the right to place a generator on the surrounding land of APW or the superior landlord be subject to APW’s prior written consent, and if so should there be an exception for cases of “emergency or operational urgency”? APW objects to that exception because the need to operate a generator arises from failure of a mains power supply, and except in those rare cases where warning is given of such a failure it is likely to be at the very least an “operational urgency”; so the requirement for written consent would have little effect. 165.We bear in mind that the site at Huntingdon is a haulage yard; Mr Clark argues that a generator outside APW’s demise is likely to interfere with the superior landlord’s operations. But we have heard no evidence about that. It is far more likely that no-one is going to mind having a generator occupy a small space for a short time. As to the other site there, if one needs to use a generator it is likely that the other will too, and as a matter of common sense we have confidence that the engineers on the ground will co-operate to make things work.166.Accordingly the provision requiring APW’s consent for the placing of a generator on its or the superior landlord’s land at Huntingdon is to be deleted.The right to lay conduits on the superior landlord’s land167.There has been a complex dispute about the extent to which On Tower shall have the right to install, connect to, and renew conduits on the superior landlord’s land. The parties’ position has changed with each fresh written submission. As will be expected from what has gone before, dispute has focussed on the extent of the right and the extent of APW’s ability to have notice of and to consent to its exercise. The existing leases allow On Tower to lay conduits under the superior landlord’s property subject to prior qualified approval. The intermediate leases give APW the right to install conduits in the superior landlord’s property subject to its qualified consent.168.It appears that the parties have now agreed the definition of “conduits”, save that On Tower wants to add wording to ensure that the conduits referred to include those used for electricity rather than just for electronic communications. We agree that the extra wording suggested by On Tower to this effect may be added for the avoidance of doubt. 169.It is also agreed that the right to install conduits or to grant to a statutory undertaker the right to do so is to be subject to APW’s qualified consent. Dispute appears now to remain only about whether consent should be required for On Tower to inspect, maintain, repair, alter and renew the conduits once laid, and to re-route and upgrade the conduits.170.This is one of the few areas where the superior landlord in each case has given an indication of wanting an element of control, by the provisions for qualified consent in the existing and intermediate leases. The installation or re-routing of conduits (however defined) on the superior landlord’s property is an intrusion and the superior landlord, through APW, should have a voice in it. And this is a matter where APW itself needs the superior landlord’s consent and so there is an obvious need for liaison once On Tower has given notice of what it needs to do. Accordingly for re-routing and upgrading conduits On Tower is to obtain APW’s qualified consent and is to give seven days’ notice. On the other hand, APW’s and the superior landlord’s involvement in the inspection and maintenance etc of the conduits is unnecessary (save that of course as already determined On Tower will give 48 hours’ notice of its entering the superior landlord’s property) and so the requirement for consent will not apply to those operations.