[2025] UKUT 280 (LC)

Paragraph 17 of the Code provides that every Code agreement automatically confers upon the operator the right to share its ECA and to upgrade it:

“(1)

An operator … who has entered into an agreement under Part 2 of this code may, if the conditions in sub-paragraphs (2) and (3) are met—

(a)

upgrade the electronic communications apparatus to which the agreement relates, or

(b)

share the use of such electronic communications apparatus with another operator.

(2)

The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.

(3)

The second condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.”

In the Code as originally enacted the right to upgrade was a Code right and the right to share was not.

On a number of occasions in the course of the early Code litigation site providers argued that operators should have no more extensive rights to share and to upgrade than were set out in paragraph 17. That of course was not what the Code provided; paragraph 17 set a minimum, but not a limit. The operator might well require for its business operations more extensive rights to upgrade and to share, and such rights could be conferred by agreement, or by the Tribunal subject to the test in paragraph 23(5). In a number of decisions the Tribunal has imposed agreements that provide for more extensive sharing and/or upgrading than those provided for in paragraph 17, for example by permitting sharing with non-Code operators and by permitting the sharing of the site and of other rights. In Cornerstone Telecommunications Infrastructure Limited v London and Quadrant Housing Trust [2020] UKUT 282 (LC), the Tribunal (the Deputy Chamber President, Martin Rodger QC, and Mrs Diane Martin TD MRICS FAAV) pointed out the importance of sharing to an infrastructure provider:

“82.

We do not regard the minimal rights conferred by para. 17 as appropriate for an agreement between an infrastructure provider and a site provider for a term of ten years.”

In Dale Park, again, sharing rights beyond those prescribed by paragraph 17 were imposed. The Tribunal said at paragraph 66:

“… without the ability to share the claimant is out of business … Moreover as a neutral host it needs an unrestricted right to share…”

The Court of Appeal confirmed, at [2021] EWCA Civ 1858, that that was the correct approach. At paragraph 62 Newey LJ with whom Dingemans and Whipple LJJ agreed, said:

“In short, I have not been persuaded that the Tribunal’s assessment of the significance of paragraph 17 was other than correct. While paragraph 17 provides a starting point and it is incumbent on an operator seeking more extensive rights to explain why, it need not establish “pretty striking circumstances” or “pretty compelling circumstances”. Nor is it the case that an application for wider rights is to be approached on the basis that it is inherently improbable that such rights are appropriate.”

Yet again the point was argued in On Tower UK Limited v AP Wireless II (UK) Limited [2022] UKUT 152 (LC) (“Audley House”), and again the Tribunal held that rights to sharing and upgrading were not to be restricted to those set out in paragraph 17. The parties have helpfully provided a note of the text of the agreement as ordered in Dale Park, in Audley House, and in EE v Stephenson [2022] UKUT 180 (LC) (“Pendown”); in each case the rights conferred on the infrastructure provider were to share the ECA, the site and the rights granted to it.

I have rather laboured the point, but I have to do so because in the present appeal the respondent has argued, first that those cases should be viewed with caution in light of the Supreme Court’s decision in Compton Beauchamp, and second that those cases no longer represent the correct approach to sharing in light of amendments to the Code made by the Product Security and Telecommunications Infrastructure Act 2022 (“the PSTI 2022”). I can address the Compton Beauchamp point now, because it requires only brief comment, and I then give some background to the PSTI 2022 amendments and return to that point later.