[2025] UKUT 280 (LC)

The relevant provisions of paragraph 34 are as follows (references to “the court” should be read as references to the FTT):

“(6)

The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

(a)

confers a code right on the operator, or

(b)

provides for a code right to bind the site provider.

(7)

The existing code agreement continues until the new agreement takes effect.

(8)

This code applies to the new agreement as if it were an agreement under Part 2 of this code.

(9)

The terms … of a new agreement under sub-paragraph (6), are to be such as are agreed between the operator and the site provider.

(10)

If the operator and the site provider are unable to agree on the terms, the court must on an application by either party make an order specifying those terms.

(11)

Paragraphs 23(2) to (8), 24, 25 and 84 apply—

…

(b)

to an order under sub-paragraph (10)

 as they apply to an order under paragraph 20.

(12)

In the case of an order under sub-paragraph (10) the court must also have regard to the terms of the existing code agreement.

(13)

In determining which order to make under this paragraph, the court must have regard to all the circumstances of the case, and in particular to—

(a)

the operator's business and technical needs,

(b)

the use that the site provider is making of the land to which the existing code agreement relates,

(c)

any duties imposed on the site provider by an enactment, and

(d)

the amount of consideration payable by the operator to the site provider under the existing code agreement.”

This appeal is about the terms of the new lease to be entered into in respect of all the sites, and therefore paragraph 34(10) and its incorporation of paragraphs 23 to 25 of the Code is important. Paragraph 24 is about the consideration payable by the operator to the site provider, and paragraph 25 is about compensation payable for any loss or damage sustained as a result of the exercise of a Code right. Paragraph 23 is about the terms of an agreement imposed under paragraph 20, and therefore by virtue of paragraph 34 the terms of an agreement that is the subject of an order under paragraph 34. Paragraph 23(5) reads as follows:

“(5)

The terms of the agreement must include the terms the court thinks appropriate for ensuring that the least possible loss and damage is caused by the exercise of the code right to persons who—

(a)

occupy the land in question,

(b)

own interests in that land, or

(c)

are from time to time on that land.”

Paragraph 34(12) says that the terms of the existing agreement must be taken into account when considering those of the new agreement; but the Tribunal has not been addressed about the existing agreements for the 12 sites. I understand that that is because they all make different provisions about sharing, and the approach taken by the parties is that the sharing term should be same in all the new agreements. Accordingly paragraphs 34(13) and 23(5) are crucial.

Also important is what has become known as the “Dale Park test”, formulated by the Tribunal in On Tower UK Limited v JH and FW Green Limited [2020] UKUT 348 (LC) (“Dale Park”). It is not a “test”, but a statement of the approach the Tribunal (and the FTT) will take to disputed terms, in paragraphs 62 to 64 of the decision:

“62.

First, the Tribunal should 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.

63.

Second, the Tribunal will consider the concerns or objections raised by the respondent and whether in order to minimise loss or damage in accordance with paragraph 23(5) the term should not be imposed, or should be imposed to a limited or qualified extent.

64.

If those concerns do not prevent the imposition of the term and do not require its qualification, then the Tribunal will consider whether, in imposing that term, it should also impose further terms to minimise loss or damage.”

That description of the approach to be taken starts from the premise that the term in question is one that the operator wants; some adaptation is needed where the term is one that the site-provider wants.