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

85.In the light of the discussion above we can now consider the specific terms of the new leases that are in dispute. We deal with safety and access under one main heading, because APW’s wish to manage access to the site is to a large extent justified by its wish to be in control of the safety of operations there, while much of On Tower’s objection to having to comply with APW’s access policy and to use its access portal is an objection to having APW approving or managing On Tower’s operations.86.It is therefore convenient to begin by looking at the access policy and the access portal.The access policy and the access portal87.APW seeks to impose a number of requirements around access to the three sites. Much of the argument and cross-examination at the hearing was about APW’s requirement that On Tower be obliged to comply with APW’s access policy, which APW seeks to have defined in and annexed to the leases. The access policy is a 21-page document which begins by setting out APW’s mission, which is to “Boost the drive for improved connectivity by providing and maintaining efficient and effective services in conjunction with running a global portfolio of infrastructure assets”, and the purpose of the policy which is “to set out the strategy for effective maintenance and provision of safe access to our portfolio of sites”. The policy goes on to define different types of access and different levels of information required in order for permits to be issued. It says “Permits will not be issued until we are satisfied with the work activities, personnel and processes involved.” In all cases risk assessments and method statements are to be provided to APW. 88.The policy requires operators to use APW’s access portal in order to get permission for access. The access portal is an on-line system for the submission and granting of access requests. We were shown a very helpful video in which we were taken through the portal’s requirements which must all be satisfied before access is given. The applicant is taken through multiple screens all requiring a number of items of information. They include the identity of the persons attending, the make, model and registration of their vehicle, the start and end time of the proposed visit, their training certificates, as well as method statements and risk assessments for whatever is to be done. It is not a quick process. On Tower maintains its own access portal for its contractors to use; APW argues that it would therefore be easy for On Tower to transfer all that information to APW’s own portal. That would of course take time; data has to be entered afresh, and documents uploaded to On Tower’s portal would have to be downloaded and uploaded afresh to APW. It is by no means the work of a moment.89.There is some dispute as to whether other operators find the portal helpful; we make no finding about that. The fact remains that the evidence in this case, which we accept, is that On Tower finds it onerous and does not wish to use it. We have to consider whether there is any reason why the new leases should impose any restriction at all on On Tower’s access to any of the sites.90.APW manages a great many sites, and we accept that for sites where it manages access and is entitled or obliged to ensure safety the requirement for the operators to use the portal is helpful to APW. On Tower by contrast has its own arrangements for access by its contractors in which it gathers all the information necessary for the safety of the visit. Transferring that information to APW’s portal is time-consuming. Mr Holloway gave evidence that On Tower did use the portal until March 2021and Mr Brearley confirmed that there had been a number of occasions when a visit was abortive or when there was no response to the request but that since they stopped using the portal there had been far fewer problems. It was agreed that the attendance log, derived from On Tower’s own system, did not set out exactly what the problem was on each occasion, and we make no finding as to the cause of the problems logged nor as to the time taken for the portal to process the request. But we accept that On Tower has good operational reasons for not wanting to use the portal in the context of the existing lease that does not require it to do so, and does not want that requirement in the new lease.91.The access policy comprises a number of requirements which are then reflected in what has to be entered on the portal. At the heart of the policy is APW’s requirement for the information it needs in order to approve the safety of what is going to be done on site, in particular the risk assessments and method statements, as well as the training certificates of individuals, their identities, and the details of their vehicles. APW says it needs this in order to ensure safety at the site, and to protect itself. On Tower says that it is unnecessary for APW to duplicate the safety assessments that it does itself. It does not wish to spend time providing information for APW to duplicate the work that it does itself and is highly qualified to do. To do so causes expense and raises the price of services, and that is contrary to the provisions of the Code.92.We accept On Tower’s arguments on this point. So far as On Tower’s own employees are concerned, as well as people on the surrounding land and the general public, On Tower and its customers are responsible for site safety. APW is not unless the terms ordered by the Tribunal make it so. It is not at risk of criminal liability unless the terms ordered by the Tribunal put it at risk. In order to meet On Tower’s operational requirement, and to cause the least possible loss and damage to APW and the superior landlords in each case, the Tribunal determines that the leases will not include the requirements for On Tower to comply with the access policy or to use the access portal. Accordingly the definitions of “Access Policy” and “Access Portal” are to be deleted, as are other references to them (in particular the proviso whereby APW’s covenant not to obstruct the tenant’s access is conditional upon the tenant complying with the access policy), and all requirements in the draft leases for On Tower to provide risk assessments and method statements.Permitted hours of access93.There are two other issues about access that require resolution. One is the hours of access, and the other is whether APW should have notice of access.94.As to the hours of access, the “Permitted hours” are defined in each lease to be between 0900 and 1700 on Mondays to Fridays, “save in the event of Emergency Works and/or if there is a technical need to do so, which must be approved by the Landlord in advance” (Schedule 1, part 1, paragraph 1.1). On the final day of the hearing Mr Clark indicated that these hours are no longer insisted upon and that APW would be content for the leases to permit On Tower to have access to the sites at “reasonable hours.” That term is not defined; Mr Clark expressed the view that early evening work, to finish maintenance work commenced in the afternoon, would be acceptable but that work in the early hours of the morning would not. A reference to undefined “reasonable hours” seems to us to hold unlimited potential for dispute.95.The existing leases grant On Tower unrestricted access to the Audley House and Port Talbot; access to the Huntingdon site is permitted between 0800 and 1800 Monday to Friday, 0800 to 1300 on Saturdays. The intermediate leases impose no restrictions on the hours when APW or its assignee can access the sites; accordingly it is clear that the superior landlord does not require notice of access to the sites. By “access” in this context we mean access as granted in the draft leases, with and without vehicles along the accessways shaded on the draft plans; access to other surrounding land of the superior landlord is considered separately below.96.APW of course has no presence on any of the sites, although its lease extends to a small area of surrounding land at Huntingdon because of the other site there; we have no evidence about the terms of its involvement, if any, in that site but it is in the same position as any other neighbour so far as that site is concerned, as is Airwaves, the operator there. If the new leases allow access to the sites at unlimited hours it is not possible to understand how that will have any adverse effect upon APW, in light of the fact that we have determined that APW has no responsibility for safety at the site.97.It may have an effect upon the superior landlord. But the superior landlord in granting APW access to the sites at unlimited hours (even at Huntingdon where On Tower’s access is presently restricted to business hours) has shown itself to be entirely unconcerned about the hours of access. No evidence has been given to show why unrestricted hours might cause any difficulty to the superior landlord. Mr Clark argues that APW has been given unrestricted access so that it can control access by its tenant, but there is no evidence that this is the case. APW or its assignee can operate a telecommunications site at any of the three sites, or any business permitted by the planning legislation at Port Talbot and Huntingdon, with access at all hours so clearly this is not a concern of the superior landlord.98.On Tower by contrast does not wish to have its operations hampered by restrictions on the hours at which it can operate at the sites.99.Accordingly we determine that access should be permitted at all hours on all three sites, in the absence of any evidence that that will cause any loss or damage to APW or to the superior landlord. The definition of the permitted hours in the draft leases is to be deleted, as are all other references to the permitted hours. The leases are to include the provision sought by On Tower for APW to provide On Tower with a key if the sites are secured by locked gates.Notice of access100.A further vexed question is whether and to what extent APW requires to be given notice of access to the sites by On Tower. APW’s amendments to the draft leases define and require compliance with APW’s “Access Protocol”, which stipulates that On Tower must give 24 hours’ notice of access to the site; the unchallenged evidence for On Tower is that in practice it takes more than 24 hours to get a response via the Access Portal. We have decided that On Tower is not required to use the Access Portal and therefore does not need permission for access; so the issue is now simply whether APW is nevertheless entitled to have notice of access.101.The existing leases do not require notice of access; APW’s intermediate leases do not require it to give notice of access to the superior landlord.102.We see no purpose in requiring On Tower to give notice of access to the sites, where APW has no presence and cannot be inconvenienced, and is not required to inform the superior landlord of access and so cannot be put in breach of any obligation to the superior landlord. There was some discussion at the hearing as to whether different provision needed to be made at Huntingdon in light of the presence of the other site; but since there is ample space for vehicles at that site and no difficulties have been experienced with access in the past we take the view that no special provisions are necessary.103.Mr Clark asked that if the Tribunal did not accede to the terms that APW requires in relation to notice of access, then the Code agreements should include provision for On Tower to provide its own access records to APW in the event that APW is subject to or threatened with legal action. It is likely to On Tower would do so, or would be required in the course of litigation, to do so in any event and we agree that the leases should include such an obligation.The Access Protocol104.Schedule 1 part 1 of the draft leases sets out the rights granted to the tenant; it goes on to provide that the rights are granted subject to a number of matters, of which two are agreed, namely On Tower’s not knowingly interfering with any third party rights over the site and On Tower’s compliance with any restrictions or conditions in the superior lease. Another proviso is that the tenant shall provide risk and safety method statements, which we have already said is to be deleted.105.APW wants to add a further condition, namely compliance with APW’s “Access Protocol”. The Access Protocol is defined as follows:“(a) a minimum of 24 hours’ notice given by the Tenant to the Landlord (save in the case of Emergency Works) where such notice shall be given as is reasonably practicable in the circumstances, or Major Works, where not less than 7 working days’ notice shall be given by the Tenant to the Landlord);(b) complying with the Landlord’s and Superior Landlord’s reasonable safety and security procedures, these having been notified to the Tenant; and(c) otherwise in accordance with the Access Policy.”106.The protocol therefore comprises a requirement to give notice for access, a requirement that the tenant comply with unspecified reasonable safety and security procedures and a duplication of the requirement to follow the Access Policy. 107.We have already dealt with the Access Policy and decided that On Tower does not have to comply with it, so paragraph (c) above is to be deleted. So is paragraph (a) relating to the giving of notice of access. 108.Paragraph (b) relates to unspecified safety requirements, and is also to be deleted. We have already decided that APW is not responsible for the safety of these sites. Nor is the superior landlord. The inclusion of this term so far as the superior landlord is concerned risks giving it responsibility for safety at the sites and potentially exposes it to civil and criminal liability as discussed above. No doubt where the superior landlord becomes aware of safety issues at the site – for example when it plans to undertake work itself – it will inform either or both of APW and On Tower; if On Tower is made aware of such issues it will be responsible for the safety of its own operations in the context of the information given to it. If it operates unsafely it will be liable under the agreed terms of the leases, it will have to pay compensation under paragraph 25, and it will be at risk of criminal liability under the 1974 Act. Neither APW nor the superior landlords need the additional protection sought by the inclusion of this clause.109.Accordingly the definition of the Access Protocol and all other references to it in the draft lease are to be deleted.The provision of ICNRP diagrams and certificates110.We noted above (paragraph 48) the agreed obligations in the leases for On Tower to comply with legislation including the requirements of ICNRP (the International Commission on Non-Ionizing Radiation Protection). To that provision APW seeks to add further requirements, repeating the obligation to comply with recommendations made by ICNRP, and imposing requirements to provide APW on completion of the lease with ICNRP compliance certificates for the sites, and to supply copies of the occupational and public exclusion zones when these change. These are significant changes from the existing leases, where there are no similar provisions, and there are no corresponding requirements in the intermediate leases.111.We accept, of course, that the ICNRP exclusion zones are of potential concern to the superior landlord and to any other neighbours whose buildings or activities may in the future fall within them (none do at present). But that is On Tower’s responsibility. It is unnecessary to make it also the responsibility of the site provider. Mr Holloway confirmed in his witness statement that On Tower will provide copies of the exclusion zones to APW upon request; it is for APW to consider carefully whether and why it would make that request in the light of what we have said about its role and responsibilities on these sites. Mr Clark says that APW liaises with the superior landlord about the ICNRP zones; it is free to do so if it chooses but the intermediate leases do not make it responsible for doing so, and nor will the Tribunal.112.We take the view that On Tower’s responsibilities in the agreed clause to abide by legislation and regulations, including the requirements of ICNRP, are sufficient. For the reasons already given there is no reason why APW should be obliged or entitled to check or manage that compliance or to take on responsibility for ensuring compliance. That would simply be a duplication of On Tower’s own work and responsibility. APW is not under any duties to the public or to the superior landlord that require it to do this, and is not at risk of criminal liability unless the Tribunal’s order puts it in a position to control what On Tower does. Accordingly APW’s additional provisions about ICNRP certificates and zones are to be deleted.