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

Audley House22.The Audley House site is on the edge of an office car park on a light industrial estate in Berkhamsted. It is a fenced area measuring 10m x 5.5m; the apparatus on site (and on all three sites) is a tower or mast, antennae, and cabinets. The nearest building is about 7m away on neighbouring land; the West Coast mainline railway runs along one side of the site; the office building served by the car park is about 20m away. The car park is open to the public highway which is about 55m from the site; the lease grants On Tower access to the site with or without vehicles along the accessway which is used by others driving into the car park.23.In 1999 the then freeholder granted a 20-year lease of the site to a number of operators. The lease gave the operators unlimited access to the site; the freeholder’s consent was required for assignment. At some point the lease was assigned to On Tower.24.In 2017 APW took a 30-year lease of the site together with a 2m-wide strip around the site, for a premium of £57,000, subject to and with the benefit of the 1999-year lease. 25.In 2018 APW granted a new lease of the site to On Tower (then known as Arqiva Services Limited), for a term of less than one year, apparently to regularise its position as tenant in the absence of evidence of consent for the assignment, although no details about the transaction are before the Tribunal. The 2018 lease incorporated the terms of the 1999 lease and stated, as we noted above, that its terms were negotiated under the old Code. The contractual term of the 2018 lease has now expired. In June 2020 On Tower gave APW a notice under paragraph 33 of the Code seeking the termination of the existing agreement and a new lease of the site. The reference was issued in April 2021.26.Although APW’s lease includes a small area outside the site, it is agreed that the new lease will be a lease of whole, so that APW will no longer own unencumbered land at Audley House that is not let to On Tower. The practical effect of that change will be that On Tower has space to park one or two vehicles on the site itself, outside its fencing.Port Talbot27.The Port Talbot site is next to a factory in an industrial area about 1.5 miles north west of the town centre. It is accessed through a gated yard used for storage by the freeholder; again On Tower has a lease of the site together with a right to use the access way.28.In 1989 the freeholder granted a 999-year lease of the site, together with other land. In 2002 the then long-leaseholder granted a 20-year lease of the site to the operator that became known as EE Limited. It gave unlimited access to the site and the surrounding land, with and without vehicles, “subject to any reasonable stipulations of the Owner and in the event that the Owner installs site security or entrance gates [the lessee] shall be provided with a key in order to gain access to the Site”.29.In 2014 APW took a 50-year lease of the site (only) for a premium of £32,000, subject to and with the benefit of the lease to EE Limited.30.EE Limited’s lease was assigned (with consent) to Arqiva Limited, and there was later an assignment (for which consent was not required) to On Tower. It is agreed that the existing lease of the Port Talbot site, granted before the current Code came into force in December 2018, is a “subsisting agreement” to which Part 5 of the Code applies by virtue of the transitional provisions. The contractual term expired in June 2020; a paragraph 33 notice was given in April 2020; the reference was issued in May 2021.Huntingdon31.The Huntingdon site is at the rear of a truck haulage and storage yard, surrounded mostly by fields, about 11 miles west of Huntingdon, close to the A14 trunk road. It is a small rectangular site; a few metres away is another mast on a small rectangular site leased to Airwaves. 32.In 2005 the freeholder granted a 15-year lease of the Huntingdon site to T Mobile (UK) Limited; it gave access to the site between 0800 and 1800 Monday to Friday, 0800 to 1300 on Saturdays, with exactly the same proviso about reasonable stipulations and a key as in the Port Talbot lease (above, paragraph 28). 33.In 2013 the freeholder granted to APW a 50-year lease over land comprising the Huntingdon site, the Airwaves site and a small area between and around them both for a premium of £97,500. APW’s lease is a small proportion of the freeholder’s haulage and storage yard.34.Through a number of assignments (with consent where needed) On Tower became the lessee under the 2005 lease in 2020. Again this is a subsisting agreement. Its contractual term expired in October 2020; a paragraph 33 notice was given in October 2020; the reference was issued in May 2021.35.In the case of Huntingdon, unlike Audley House and Port Talbot, the new lease to be granted to On Tower will be a lease of part of APW’s title. APW’s intermediate leases36.It will be useful for us to say more at this point about the terms of APW’s three intermediate leases, because a number of the arguments advanced on APW’s behalf rely upon obligations said to be owed by APW to its landlord.37.The three intermediate leases are in very similar form with nearly identical wording throughout, and therefore presumably in APW’s standard form with some variations. In each, the landlord is the freeholder (or in the case of Port Talbot the 999-year lessee), the tenant is APW, and the undertenant is the tenant under the “existing leases”, defined to mean the telecommunications lease to which each site is already subject, and we use these terms in the paragraphs below under this heading. In each case the grant is made in consideration of a premium and a peppercorn rent. The term of each intermediate lease is considerably longer than that of the existing lease. The rent payable by the undertenant is expressly assigned to APW. The tenant is granted ancillary rights to access the site “at all times” across the landlord’s property from the highway, on foot or with vehicles and to connect to service media and utilities, as well as all the rights granted to the undertenants in the existing lease and “any other rights” over the landlord’s property that the tenant needs to enable it to grant future leases, to renew the existing leases or to deal with any applications by the undertenants.38.There is no restriction on APW’s access to any of the three sites. There is no provision for the landlord to be given notice of access to the site, by the tenant or the undertenant. The Audley House and Huntingdon leases provide at clause 3.9:“It is agreed that the Tenant shall be responsible for all reasonable access requests to the Property by the Undertenants but the Landlord will use all reasonable endeavours to assist the tenant should it require assistance in granting access to the Undertenants.” 39.In each intermediate lease the landlord reserves the right to enter the site in order to repair, inspect etc structural parts of its own property and any service media, on reasonable notice to the tenant.40.In each case APW is restricted to a permitted use; for Audley House the permitted use is as a telecommunications site, whereas for Port Talbot and Huntingdon the permitted use is stated to be for a telecommunications site or for any use for which planning permission has (if necessary) been granted. 41.In the Audley House lease the tenant is required to insure against public liability arising from the use of equipment on the site; in the Port Talbot and Huntingdon leases the tenant is also required to put in place any insurance that the landlord is required to have pursuant to the underleases; however, we can find no such liability in the existing leases, which all place insurance responsibilities upon the undertenant. None of the intermediate leases imposes any repairing obligation on APW, but APW covenants to enforce the obligations of the undertenant in the existing leases. 42.APW is free to assign the whole or part of its interest under the leases, and to charge its interest, without the landlord’s consent. It can underlet the whole or part of the site or share the site, but it must notify the landlord whenever it does so, and each intermediate lease refers to “Future Leases”, defined as “any underlease, site share licence, commercial agreement or sharing possession” of all or part of the land. The Audley House and Huntingdon leases provide that if as a result of any sharing or parting with possession it receives “excess revenue” (defined as anything more than the rent then payable under the existing leases, as reviewed in accordance with their provisions) then it must pay 50% of that excess to the landlord.43.APW has the benefit of a break clause in each of the intermediate leases; the Audley House is terminable on one month’s notice, Port Talbot and Huntingdon on three months’ notice. In each case it is expressly provided that termination under the break clause does not give rise to any obligation on the part of the landlord to repay the premium.44.The consequence of the provisions summarised above is that although there are references in all the intermediate leases to the existing and future underleases, so that it appears that the parties expected APW’s land to be sub-let, nevertheless APW, or its assignee, is free under each of the intermediate leases to operate a telecommunications site on the land demised in the event that the existing lease to On Tower is terminated and vacant possession given up; on the Port Talbot and Huntingdon sites it could do anything it wishes, subject to planning requirements. Equally thanks to the break clause APW can walk away, reinstating the landlord as the immediate reversioner of On Tower.