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

45.We can now turn to the terms in dispute; and for the rest of this decision we refer to On Tower’s existing leases as leases rather than sub-leases except where the context requires otherwise, and to APW’s landlord as the superior landlord. It is agreed that APW will let to On Tower the whole of the land demised to it by the intermediate leases of Audley House and Port Talbot, and an agreed area of its title at Huntingdon, which means that the area of the Audley House lease will be greater than that demised by On Tower’s existing lease while the other two areas will be unchanged.46.We heard evidence of fact relevant to the disputed terms from witnesses who are familiar with the business operations of both parties: we heard evidence from Mr Tim Holloway MRICS, Estates Surveyor for On Tower, and Mr Nicholas Brearley MRICS, Landlord Care Manager for On Tower. A witness statement was made by Mr Peter Thacker, Legal Director for APW, but he was unable to attend the hearing and Mr Nicholas Ward, Regional Asset Director for APW, was cross-examined on Mr Thacker’s statement. The Tribunal would like to thank Mr Ward for his assistance.47.In looking at the disputed terms we bear in mind the protections afforded to the site provider in the Code, and in the leases themselves. Paragraph 25 of the Code enables the Tribunal to order the operator to pay compensation to the site provider for any loss or damage sustained by it as a result of the exercise of Code rights. Paragraph 86 of the Code provides:“Except as provided by any provision of Parts 2 to 13 of this code or this Part, a operator is not liable to compensate any person for, and is not subject to any other liability in respect of, any loss or damage caused by the lawful exercise of any rights conferred by or in accordance with any provision of those Parts.”48.Accordingly it is not open to the parties to improve upon the site provider’s position by providing contractual liabilities in its favour in addition to paragraph 25 in respect of loss or damage caused by the exercise of the operator’s Code rights. The parties have agreed a number of additional provisions for APW’s protection, which must be read in the light of paragraph 86. The draft leases contain covenants by On Tower:a.To secure all necessary planning consents for works at the sites.b.To keep its apparatus in good and safe repair and condition and to keep the site clean and tidy.c.To carry out all works in a proper and workmanlike manner, causing as little nuisance as practicable to APW and adjoining occupiers and making good all damage.d.To comply with applicable legislation and with the requirements of health and safety regulatory bodies, including ICNRP (the International Commission on Non-Ionising Radiation Protection).e.To indemnify APW and the superior landlord against any liability they incur to a third party as a result of anything done by On Tower, up to £10 million.f.To insure the sites in respect of third party and public liability in the sum of £10 million.g.Not to do anything which may constitute a nuisance or cause injury to APW, the superior landlord or other users in the vicinity of the site, although the exact terms of this covenant are in dispute (see paragraph 192 below).49.Rights are reserved to APW and to the superior landlord to visit the sites, accompanied by a representative of On Tower, and there is a clause providing for forfeiture for breach of covenant by the tenant.50.The disputed terms are many, and we have grouped them under the headings “safety and access”, “sharing and upgrading”, “rights over the superior landlord’s land”, “further provisions relating to the superior landlord” and finally a miscellaneous group. We preface our discussion of the terms with a consideration in principle of the responsibility of a site provider for the safe operation of a site on its land and of particular considerations that APW says are relevant to it. That issue dominated the argument at the hearing and is central to the nature of the business relationship between the parties; are they to be simply landlord and tenant, or does APW have to have an active role in On Tower’s operations because of its responsibilities for health and safety? Our conclusions on that issue colours our discussion of many of the disputed provisions. We go through them group by group, starting in each case with the draft lease for Audley House and then noting any differences in relation to Port Talbot and Huntingdon, which are the subject of a separate draft lease. We have kept to a minimum any reference to the numbering of the clauses in the two draft leases which are before us but which are not published with this judgment; the references we have included are for the parties’ own assistance and to assist other readers to understand the structure of the drafts.