[2025] UKUT 280 (LC)

The FTT was presented with an extensive schedule of disputed terms for the new lease of the 12 sites; at paragraph 56 of its decision it said “The Tribunal is being asked to determine 140 points of dispute. Many concern drafting and boilerplate clauses. Most could and should have been agreed. As a result very considerable costs have been incurred by both sides that could easily have been avoided.” The FTT heard evidence of fact and expert evidence; relevant to the appeal is the evidence of fact from Mr Timothy Holloway, a Senior Regional Surveyor for the appellant, and of Mr Nicholas Ward, a Regional Director of Asset Management for the respondent.

One of the terms in dispute related to the appellant’s right to share. Obviously sharing is crucial to the appellant’s business; it needs to share its ECA but, as was noted in the consultation relating to the 2022 amendments, in many cases it needs more than that and the Tribunal has in a number of cases ordered more extensive sharing rights. What it wanted in the present case was the right to share (1) its ECA (which of course is what paragraph 17 confers in any event), (2) the site and (3) the rights conferred by Schedule 1 of the draft lease (“the Rights”). The Rights differed from site to site, but in most instances included a right of access together with rights to park, load and unload, the right on 48 hours’ notice (save in emergency) to enter and remain on adjoining land to carry out works, the right to erect install and operate the ECA and to maintain and upgrade it etc, to place a generator on the site, to lay conduits and to grant wayleaves, and to lop trees.

The respondent conceded that the appellant could have the extended sharing rights that it sought so far as concerned customers already in occupation of the 12 sites (referred to by the parties as “Category A sharers”); but vis-à-vis customers not in occupation at the date of the lease (“Category B sharers”) the respondent wanted the appellant only to have the right to share its ECA and not to be able to share the site or the Rights.

The FTT’s decision was impressive, as is consistently the case with its telecommunications decisions. It dealt carefully and succinctly with the huge heap of issues between the parties. As to the dispute about the sharing term it said this:

“59.

In Audley House (On Tower UK Limited v AP Wireless II (UK) Limited [2022] UKUT 152 (LC) at [135-139] the Upper Tribunal permitted sharing of the site as well as the equipment. Sharing was made subject to a proviso in respect of

paragraph 10(4) of the Code which both parties have included as part of their drafting.

60.

Mr Holloway in his evidence (Day 2 pp 111-114) explained the process that would be followed where customers (typically MNO’s) wished to carry out work (for example upgrades) at the site. Initially there would be involvement of the Project Management Team and discussions with the site provider. The customer’s

contractors would arrive with vehicles and a crane. Work undertaken by contractors would include: “prepare the site, take down anything that needed to come down to replace it with”, “they may need to put concrete down to put new cabinets on -- sorry, they may need to lay concrete in order to put new cabinets into the site” and “they could put in cables in”.

61.

Audley House was decided before amendments to the Code introduced by the

Product Security and Telecommunications Infrastructure Act 2022. Sharing is now a Code Right under paragraph 3(1):

(ca) to share with another operator the use of electronic communications

apparatus which the first operator keeps installed on, under or over the land,

(ea) to carry out any works on the land for the purposes of, or in connection with,

sharing with another operator the use of electronic communications apparatus

which the first operator keeps installed on, under or over the land or elsewhere,

(fa) to enter the land for the purposes of, or in connection with, sharing with

another operator the use of electronic communications apparatus which the first

operator keeps installed on, under or over the land or elsewhere,

62.

In Audley House [136] the Upper Tribunal expressed some concern about exactly the kind of work, to be undertaken by contractors, described by Mr Holloway:

“On Tower can permit those who share the equipment to access and enter the site as necessary. Mr Seitler QC responds that this right does not enable it to allow an operator to place a cabinet on the land within the site. There is clearly some room for argument about that, and accordingly we take the view that the additional right sought by On Tower should be granted, in view of the nature of its business needs, unless the respondent’s concerns are justified.”

We take the view that paragraphs 3(1)(ea) and (fa) now puts the matter beyond

doubt and that the effect of the amendments introduced by the 2022 Act is that a

provision requiring the sharing of the site as well as the equipment is no longer

required.

63.

Audley House at [163] also decided that sharing should not be limited to Code

operators. The position is unchanged by the 2022 Act. However the agreed wording, in these references, limits sharing to “providers of electronic communications networks for the purposes of the provision by them of their networks”.

The clause directed by the FTT is set it out below; I have emboldened the words that the appellant says should not be included:

“3.6.3

The Tenant is permitted to share occupation and use of the Property and the

Rights with providers of electronic communications networks who are in occupation of the Property at the date of this Lease. The Tenant is permitted to share use of the Installation with providers of electronic communications networks for the purposes of the provision by them of their networks PROVIDED THAT nothing in any written agreement between the Tenant and an Operator pursuant to this paragraph shall be treated as an agreement by the Landlord for the purposes of paragraph 10(4) of the Electronic Communications Code.”

In that clause “the Property” means the site, including the ECA; the Installation is the appellant’s ECA; and an “Operator” is a Code operator. The effect of the clause is to prevent the appellant from sharing the site and the Rights with Category B sharers, as desired by the respondent. The appellant appeals that decision with permission from this tribunal, and seeks the deletion of the emboldened words. With those words deleted, the clause would be in identical terms to the one ordered in Audley House.

The respondent has applied for permission to cross-appeal in relation to three other provisions ordered by the FTT, relating to wayleaves, conduits, and objections to planning permission. The Tribunal directed that that application be heard on a “rolled up” basis (i.e. so as to decide the permission application, and the appeal itself if permission is granted, together) along with the appeal.

Accordingly, in the paragraphs that follow I decide the appeal, and then turn to the rolled up application for permission to cross-appeal.