[2025] UKUT 280 (LC)

The appellant explains that the effect of the sharing clause as ordered by the FTT is that its Category B sharers will not be able to install apparatus such as cabinets and cables themselves, even if that is essential for the services they provide. Instead, any additional ECA will have to be installed by the appellant itself. In addition, the appellant cannot share with its Category B sharers its right to access the site or adjoining land, nor to maintain, repair or upgrade their ECA, nor to install a generator, nor to place conduits and suchlike. The respondent agrees that the impact of the clause is that Category B sharers will be unable to place their own ECA on the site but does not accept that that is a problem; and it argues that Category B sharers can be allowed to exercise the appellant’s rights as agents for the appellant. Alternatively they can apply for Code rights against the appellant to place ECA on the site, or seek rights from the respondent in respect of neighbouring land.

There are five grounds of appeal:

Grounds 2, 3 and 5 can be summarised together as follows: The appellant argues that it had produced ample evidence of its business need to share the site and the Rights

with the Category B sharers, that the respondent could not show that it would suffer any relevant loss or damage as a result of its being granted the wider sharing rights that it sought, and that therefore had the FTT correctly applied the Dale Park test it would have ordered the wider sharing rights sought by the appellant. Instead the FTT having accepted the appellant’s evidence nevertheless declined to order that wording because of a misunderstanding of the effect of the amendments made by the PSTI 2022. I shall address these arguments, and the respondent’s response to them, before dealing briefly with grounds 1 and 4.