[2025] UKUT 280 (LC)

I turn to the first and second grounds of cross-appeal, which Mr Clark KC helpfully argued together at the hearing. Three preliminary points need to be made. First, shortly before the FTT hearing the respondent provided plans for the sites in question, showing each site edged red and in addition showing an area around each site edged blue in order to designate an area to which the appellant would have a right of access, for the purposes of maintenance and upgrade and for heavy machinery. I refer to the area edged blue on each plan as the “blue areas”. In just one case, if I have understood correctly, the blue area was coextensive with the site itself but in the other cases the blue area was bigger than the site.

Second, in general terms the respondent usually has rights over land outside its actual telecommunications sites. Those rights vary; in some cases the respondent owns or has a lease of land outside the site and in some cases it has rights over land outside the site granted by the landowner – referred to in the draft lease as “the Superior Landowner”. The Tribunal was not addressed about the exact terms of those rights, but I understand that some are restrictive covenants preventing the landowner from dealing with other operators.

Third, the appellant needs to connect each site to power and fibre (as the FTT accepted).

Turning then to the clauses in issue in these first two grounds; the FTT determined that the draft lease should contain a clause (“the wayleaves clause”) about the grant of wayleaves and another (“the conduits clause”) giving the appellant the right to lay conduits.

The FTT decided that the wayleaves clause should read as follows (with my emphasis added as explained below):

“If the Tenant requires, the Landlord will (upon payment of the Landlord’s reasonable and proper professional costs by the Tenant) grant such wayleaves [and/or use reasonable endeavours to procure that the Superior Landlord complies with its covenant under the Superior Lease (if applicable) to grant such wayleaves)] to any statutory undertaker and/or public electricity supply authority for the installation of Conduits [on over or under the Landlord’s Adjoining Property and/or the Superior Landlord’s Property], as may be necessary to enable the operation of the Installation for the Permitted Use and/or to enjoy the Rights, subject to and in accordance with clause 4.2.2 below”

The respondent seeks the deletion of the words in bold, and the insertion of the words “under such parts of the Property shown edged blue on the Plan” after “such Conduits.” In substance, the respondent is content for the appellant to have the right to grant wayleaves for the laying of conduits on the site and the blue land, but not on the rest of the respondent’s adjoining land if any nor on the superior landlord’s adjoining property.

Turning to conduits, the conduits clause ordered by the FTT confers the following rights upon the appellant:

“The right to lay in and upon the land shown edged blue on the Plan together with the right to grant to any public electricity supply authority and/or public electronic communications operator and/or statutory undertaker the right to lay in or upon [Superior Landlord’s Property and/or Landlord’s Adjoining Property and/or Third Party Property] in such locations and by such means and on such terms as shall first be approved by the Landlord in accordance with clause 4.2 (such approval not to be unreasonably withheld or delayed) such Conduits (including a separate power supply) to connect the Installation with any available electricity or electronic communications supply cable as the Tenant shall require for the purposes of the exercise of the Rights and thereafter use any such Conduits and such Conduits as exist at the date of this Lease for the Permitted Use and to inspect maintain adjust repair alter renew reroute and upgrade the same.”

Again the respondent seeks to appeal the right given in respect of the respondent’s adjoining land and the superior landlord’s land, and instead wants the appellant to have the right to grant wayleaves only over the land edged blue.

At the hearing Mr Clark KC summarised the grounds of appeal by making four arguments. First, he said that the clauses in issue lay an excessive burden on the respondent to procure the grant of wayleaves even where it has no power to do so, without any clear benefit for the appellant when the appellant had not shown a business need to be able to grant wayleaves or lay conduits over land outside the blue areas. Second, he argued that the FTT did not consider what rights the respondent actually has over land outside the blue areas, nor what terms would cause the least possible damage to the respondent. Third, that the evidence was that in practice there was no need for the respondent’s involvement outside the blue areas because in practice the statutory undertaker would negotiate directly with the landowner; and fourth, that the FTT wrongly understood that the respondent’s preferred wording would limit the areas in which statutory undertakers would be able to operate, whereas in fact it limited only the areas where the respondent would need to be involved.

The respondent made one further argument in its grounds which I shall address separately. So far as the arguments summarised above are concerned, essentially the argument for the respondent is that outside the blue land there is no need for it to get involved. It is particularly burdensome for it to have to do so, especially if it is required to force the superior landlord to grant rights. It is unreasonable for it to have to sue the superior landlord. In practice the statutory undertaker will deal directly with the landowner at the appellant’s request.

As Ms Dodds pointed out, that is rather a surprising argument in view of the fact that the respondent’s business is supposed to be to assume on behalf of the freeholder the burden of dealing with the operator. As Mr Ward, for the respondent, put it in his witness statement:

“Often site providers sell an interest in the site to APW on the basis that APW will

effectively estate manage the site moving forward, indeed this is one of the key selling points for site providers when engaging with our acquisition team, often because they have had bad experiences with the telecoms site. Essentially therefore APW steps into the shoes of the previous site provider and consequently should receive the same notice regarding operational matters the site provider received previously (who was not necessarily receiving this), however instead of the previous site provider receiving the notice from the operator and/or having to communicate with the operators (or their agents) moving forward, APW will and does facilitate those discussions. APW maintains good relationships with superior landlords and operators, APW’s estate management approach minimises abortive visits and helps minimise and resolve disputes with the superior landlords or adjoining owners.”

If that is the respondent’s key selling point then it is surprising to hear it objecting so vehemently to getting involved in the matter of wayleaves and conduits, which one imagines would be the sort of thing that site providers would find irksome and might want the respondent to manage for them.

In my judgment the FTT’s decision about the wayleaves and conduits clauses did not arise from a misunderstanding, nor from any disregard for the evidence. The clauses are the natural consequence of the respondent’s interposing itself between the original site provider and the operator. Since it has put itself in that position, it must therefore grant the rights that the operator needs in respect of wayleaves and conduits insofar as it can do so (the introductory words to the schedule of rights granted in the lease states: “The following rights are for the benefit of the Tenant insofar as the Landlord is able to grant the same”). It may well be that on many occasions it will not need to be involved, but the clauses have to be there in case of need. There was no need for the FTT to investigate precisely what rights the respondent had over neighbouring land, nor to specify and analyse exactly what rights the respondent had or what was needed for each site. The respondent’s role as intermediate landlord makes this sort of obligation inevitable. Its interest was carefully protected by its rights to approve plans – another consequence of its acquisition of land and rights for the purpose of managing the site for the freeholder- and by its right to recover its costs from the appellant.

Furthermore, I take the view that the respondent’s attempt to limit its involvement in the granting of wayleaves and conduits to the blue land was irrational. The blue lines were drawn for a very different purpose. I appreciate that the respondent offered to limit its involvement to that area by way of compromise, but why choose that area in particular or indeed any area at all if its involvement was unnecessary?

Finally, the grounds for cross-appeal also included the assertion that in requiring these rights for the appellant the FTT had ignored the fact that the respondent’s rights over neighbouring land had a value and might be surrendered for value. The clauses determined by the FTT would be an impediment to its doing so, or might render its ability to do so subject to the whim of the appellant or subject to a demand for a ransom payment.

No evidence was called to indicate that such rights had a surrender value. In any event, I find the argument very strange. APW’s business is the acquisition of land and rights in order to provide sites and facilities to operators. It interposes itself between landowners and operators for that purpose, but it does not operate any other business on the land. To some extent that complicates the situation for the operator, because there are now a landlord and a superior landlord rather than simply a freeholder landlord. Clauses of the kind directed by the FTT are intended to ensure that the operator’s need for services is not frustrated by the division of rights between the respondent and the freeholder. The suggestion that the respondent in fact wants to make money by surrendering rights to the freeholder appears to run contrary to its business model as set out by Mr Ward, quoted above.

Again, it may be that in some, perhaps many cases there will be no need for the respondent to be involved in the grant of wayleaves and the laying of conduits. But it has acquired land and rights in order to interpose itself between the landowner and the operator and it is surprising that it should complain about a clause that reflects that interposition.

I see no realistic prospect of success on a cross-appeal about the wayleaves clause and the conduits clause, and permission to cross-appeal is refused.