LC-2023-000815 - [2024] UKUT 263 (LC)

The second of the Agreements is an agreement in writing dated 21^st January 2002, entered into between David Pinkerton and Andrew Pinkerton (“the Pinkertons”), as owners of the site with which this agreement was concerned, and Orange. The agreement (“the 2002 Agreement”) was signed by each party, but was not made by deed.

The 2002 Agreement bore the following heading:

“AGREEMENT FOR THE INSTALLATION OF TELECOMMUNICATIONS EQUIPMENT”

The 2002 Agreement was also split into separate parts. The first part contained the essential terms agreed between the parties, lettered A-E, although clause A may, again, be said to be more akin to a recital. As before, it is easiest simply to set out clauses A-E in full:

“A.

The Owner is entitled to a legal estate in the site described below (“the Site”) shown for identification purposes only edged in red on the attached plan, part of Hanover Farm, Lower Road, Lower Road, Hullbridge, Essex as shown on plan number:

30/ESX0311/01 Issue A

B.

The Owner has agreed that Orange shall have the following rights (“the Rights”):

(i)

at Orange’s expense to install operate maintain repair renew replace upgrade and add to the Telecommunications Equipment on the Site,

(ii)

at Orange’s expense to run maintain repair renew and replace an electricity cable from the Owner’s electricity supply to the Telecommunications Equipment or if required a mains electricity service from the boundary of the Premises to the Telecommunications Equipment in such positions as shall be agreed between the parties,

(iii)

at Orange’s expense to bring onto and keep and operate on the Premises in a position to be agreed between the parties for any period when the electricity supply to the Telecommunications Equipment has been interrupted a back up power generator together with any associated sockets and cables,

(iv)

at Orange’s expense to run maintain repair renew and replace a communications link from the Telecommunications Equipment to the boundary of the Premises in such positions as shall be agreed between the parties,

(v)

to obtain access including vehicular access subject to giving 24 hours reasonable prior notification except in the case of emergency when access shall be unrestricted to and from the Site over and along the route shown in blue on the attached plan including where necessary a right to lay a hardcore track along such route together with a right of access on reasonable notice (except in all cases of carrying out Emergency Works (as defined in the Schedule to this Agreement) when no notice shall be required ) to such parts of the Premises as are reasonably necessary to exercise the Rights provided that Orange will comply with such reasonable safety and security procedures as are required by the Owner.”

C.

Orange has agreed to pay for such rights a Fee of £4,000 per annum (“the Fee”) exclusive of VAT payable and subject to review in accordance with the attached terms and conditions set out in the Schedule to this Agreement.

D.

The Term is 20 years from the date shown above (“the Term”).

E.

This Agreement shall be subject to and shall incorporate the terms and conditions set out in the Schedules to this Agreement.”

The 2002 Agreement identified the site which was the subject of the 2002 Agreement as a part of Hanover Farm, Lower Road, Hullbridge, Essex. In common with Mr Powell in his witness statement, I will use the expression “the Lubbards Site” to refer to this land, that is to say “the Site”, as the Site was defined and identified in the 2002 Agreement. I will refer collectively to the Sandbach Site and the Lubbards Site as “the Sites”.

It will be noted that the Lubbards Site was shown, for identification purposes only, on a plan attached to the 2002 Agreement. There is a plan attached to the 2002 Agreement. The version of this plan which I have seen is a black and white copy of the original plan (“the Lubbards Plan”). If there was red edging on the original version of the Lubbards Plan, the copy plan which I have seen does not show where the red edging ran.

Schedule 1 to the 2002 Agreement contained the bulk of the terms and conditions referred to in clause E, which were divided into ten numbered clauses. Again, I will need to come back to these clauses, in detail, later in this decision. As with the 1997 Agreement, clause 1 of these terms and conditions contained a list of defined expressions used in the 2002 Agreement. Telecommunications Equipment was defined to mean “any combination of antennas transceiver and switch equipment cabling power supply equipment and any equipment ancillary thereto and support structures including a mast or tower as required from time to time as set out in Schedule 2 to this Agreement.”.

Schedule 2 to the 2002 Agreement further defined the Telecommunications Equipment in the following terms:

“15 metre (excluding lightning protection and antennae) tower/mast, antenna system with supporting structure to give up to 360 degrees radio coverage and including up to 6 antennae up to 4 microwave dish antennae, equipment cabin (s)/cabinet (s) not exceeding in aggregate 35 cubic metres in volume, associated feeders, LNAs and associated equipment all cabling and ancillary equipment, cable gantries and power equipment as required.”

I will use the expression “the Telecommunications Equipment” to mean the telecommunications equipment which Orange was granted the right to “install operate maintain repair renew replace upgrade and add to” by clause B(i) of the 2002 Agreement.

The bundle of documents for the Appeal also contains photographs of the Lubbards Site. These photographs show an area (again best described as a compound) enclosed by a high metal mesh fence, topped with strands of barbed wire and incorporating a padlocked metal mesh double gate. Two safety/information notices are affixed to the gate, including a notice stating no entry to unauthorised persons. Within this enclosed compound, various items of telecommunications equipment are located, including a cylindrical telecommunications tower. Access from the road to the land in which this enclosed area is situated is obtained through a metal barred gate. A fuller description of the Lubbards Site, and what is known of its history can be found in Mr Powell’s witness statement.

The evidence of Mr Powell is that APW purchased the freehold interest in the Lubbards Site on 22^nd June 2017. According to Mr Powell, APW’s title includes land around the enclosed compound which I have described above. The land owned by APW is, I believe, registered under four separate titles. The office copy entries for these titles disclose that APW was registered as proprietor of the land in these titles on 26^th June 2017.

The operator of the telecommunications equipment now present on the Lubbards Site is OT. I will refer to this equipment as “the Lubbards Equipment”. As with the Sandbach Equipment, I use this separate definition because I do not know to what extent, if at all, the Lubbards Equipment is the same telecommunications equipment which was originally installed on the Lubbards Site, pursuant to the 2002 Agreement; that is to say the original telecommunications equipment which I am referring to as the Telecommunications Equipment.