[2025] UKUT 280 (LC)

It will be apparent from the discussion so far that the respondent is adamantly opposed to the wider sharing rights that the appellant seeks in relation to its Category B customers. What is far more difficult to understand is the reason for its objection.

It was suggested to the FTT that the respondent is concerned about damage caused by future sharers of the sites, and that it wanted to be in a direct contractual relationship with sharers so that it could pursue them directly for any damages. That sort of argument has been raised in previous cases and always rejected; the respondent has the protection of the compensation provisions of paragraph 25 of the Code, as well as the additional indemnity provided by the agreement. It was not relied upon in the appeal.

Before the FTT Mr Ward, giving evidence for the respondent, explained that in the absence of the wider sharing rights the Category B customers would have to approach the respondent for rights to enter neighbouring land to place cabinets there (because the respondent could not grant the customer rights over the site of which the appellant has exclusive possession under its lease). Alternatively “there would be that discussion with On Tower”, in other words the appellant would have to ask the respondent for additional sharing rights. The judge asked “And that discussion with On Tower is about asking On Tower for more money?”. “Yes” said Mr Ward.

Before the Code came into force it was commonplace for an agreement under the “old Code” to require an operator to make an extra payment of consideration whenever it wanted to share its site with another customer. Known as “payaway”, these were substantial payments because consideration in the old Code was at market rates, without the “no network assumption” (see paragraph 4 above). As Mr Lees KC argued, the respondent’s evidence to the FTT sounded very like an attempt to re-introduce payaway by extracting further payments when the appellant is unable to make the arrangements its customers want in the future because of the limited nature of its sharing rights under the lease.

In the appeal Mr Clark KC did not adopt that evidence. He did say that the conferral of additional sharing rights would entitle the respondent to additional consideration; but an entitlement to consideration is not loss or damage. In any event Mr Clark KC conceded that no evidence had been produced to the FTT to show what additional consideration would be payable in the event that rights to share the site and the Rights were conferred on the Category B customers. I venture to think it is unlikely that any evidence could have been produced to justify additional compensation, but at any rate that is nothing to do with loss or damage.

Mr Clark KC conceded that the respondent could not produce any evidence of loss or damage in monetary terms. Instead, he said, its objection was one of principle. The appellant is an infrastructure provider and therefore should provide infrastructure. It obtained its Code designation on that basis. It should not be letting its customers bring their own cabinets on to the site. Moreover, the extensive sharing rights it seeks will enable it to stop providing any infrastructure at all; it will be able to remove all its ECA and simply take payments from its customers without providing them with anything other than a bare site.

There is no evidence that the appellant wishes to change its business model in that way, but even if it does that is irrelevant to what the FTT had to decide. The respondent has not shown that it will suffer any loss or damage as a result of the wider sharing rights that the appellant seeks.