[2025] UKUT 280 (LC)

The appeal is not against a finding of fact that the appellant did or did not have a business need for the wider sharing rights that it sought. But the appellant argues that on the basis of the Dale Park test the FTT should have ordered that the clause should be as the appellant wanted. The first step in the Dale Park approach is for the Tribunal to “consider the term the operator seeks and the reason why it needs the term in question in order to pursue the business for whose purposes it received its Ofcom direction and in light of the public interest in a choice of high quality telecommunications services.” So in order to assess the appellant’s argument I have to look at whether on the basis of the Dale Park approach the appellant had produced sufficient evidence of its business need for the sharing rights it wanted.

Evidence of the appellant’s need to share the site and the Rights was given by Mr Holloway. He said that the point had been argued at length in Audley House and that the wording and rights proposed by the appellant reflected the decision in that case. He explained that the appellant’s customers needed to use the Rights in order to operate the site. At the hearing he was asked by the FTT what customers needed to be able to do, and he explained that the customer would need to bring vehicles to the site, perhaps with a crane to take down or replace antennae; it might need to install its own cabinets and/or lay concrete, or to put equipment in new or existing cabinets. Mr Lees KC argued that the appellant had done all that was necessary to demonstrate its business need, and referred to dicta in Dale Park, approved by the Court of Appeal, to the effect that there is no need for especially compelling evidence (see paragraphs 21 above).

The respondent says this evidence was insufficient. It points out that there was no evidence from or about specific Category B sharers to demonstrate their needs. Mr Clark KC said that there was concrete already at all or most of the sites. He argued that there was no reason why the appellant should not itself provide all the ECA its customers needed, such as cabinets – which was an argument made by Mr Toby Watkin KC before the FTT. And the customer could access the site in accordance with clause 1.10 of the lease which says:

“References to any rights exercisable by the Tenant shall be construed as being exercisable by the Tenant and all persons authorised by them as agent for the Tenant only.”

Further the respondent argued that the FTT rejected Mr Holloway’s evidence: at its paragraph 88, in the context of the landlord’s break clause desired by the respondent, the FTT said:

“OT has no control over upgrades. Mr Holloway was unable to say who paid for upgrades as that was a matter outside his purview. The Tribunal did not find Mr Holloway’s evidence on upgrading to be of assistance. It was not helpful to the Tribunal that high level information on forward planning discussions between OT and the MNO’s around sharing was not produced at the hearing.”

Taking that last point first, I disagree with the respondent. The FTT’s words in paragraph 88 are firmly grounded in a different context, namely the potential for the respondent or its sister company (which is a Code operator) to take over the site and redevelop it in the future, and the link between that potential and its wish for a break clause. This paragraph has nothing to do with the terms of the appellant’s right to share which is discussed in paragraphs 53 to 62 of its decision, quoted in part above at paragraph 33, and in those paragraphs the FTT did not take issue with the appellant’s evidence.

In my judgment the appellant produced sufficient evidence that it needed the wider sharing rights for its Category B customers. True, it did not produce evidence of who those future sharers were and what they wanted because those future arrangements have not yet come to pass. It is difficult to see what evidence of future need the respondent was looking for; is the appellant really supposed to produce for example a letter from an operator who is not yet sharing a particular site to say that if it were to use that site, it would need to put a cabinet there? It is unnecessary and impracticable for the appellant to produce something new for each of its hundreds of sites to show that there are future sharers who will want to put cabinets, cabling or concrete there. As a WIP the appellant has to be alive to its customers’ potential future requirements and ready for technological change. The appellant’s evidence was not really challenged, and was consistent with evidence that has been accepted in many other cases; it would not be credible to suggest that the practice and wishes of MNOs is going to change so that future customers will not actually want to enter the sites or to place ECA there. What is suggested is that nevertheless the appellant should change its business model and should be the exclusive provider of physical ECA such as cabinets and cables. Why that is any concern of the respondent is a mystery; there is more to say about that point when we come to look at what the FTT said about the PSTI 2022, below. But the appellant’s evidence of its usual practices and its customers’ requirements was sufficient.

I agree that Mr Holloway’s evidence does not sharply distinguish between the ability to share the site and the ability to share the Rights. Such distinct evidence is difficult to devise because the two ideas go hand-in-hand. A customer entering the site and putting a cabinet there as well as connecting its antenna to the appellant’s mast is obviously sharing the appellant’s ECA but it is not easy to say whether it is sharing the site, or the appellant’s right to enter it and put things there, or both. The respondent’s attempt to distinguish between the two ideas is pointless. As I said above at paragraph 22, the clauses ordered to be included in the leases in London and Quadrant, in Dale Park and in Audley House conferred the right to share both site and rights with the infrastructure provider’s customers.

I do not accept the argument that there is no need for the customers to share the Rights because the appellant can authorise it to exercise them under clause 1.10 (paragraph 44 above), because that clause enables the Tenant to authorise others to exercise rights as its agent only. It is difficult to see that when a customer enters the site to further its own business it is an agent of the appellant; and it is also pointless. There is simply no need for the arrangement to be shoe-horned into an agency that it does not fit, when the appellant could simply share the site and the Rights with its customers.

In summary, the appellant produced evidence that it has a business need to be able to share with its customers, present and future, the site itself and the Rights granted by Schedule 1 of the lease. The FTT appears to have accepted that evidence; at any rate it did not express disagreement, and indeed there was no basis on which it could have rejected it.