- Court of Appeal (Civil Division)
- 7 December 2021
- Newey, Dingemans and Whipple LJJ
- [2021] EWCA Civ 1858
- [2021] PLSCS 210
Telecommunications – Electronic Communications Code – Code rights – Respondent infrastructure provider seeking new lease under Electronic Communications Code with extended equipment upgrading and sharing rights – Reference made to Upper Tribunal for determination of terms not agreed – Tribunal deciding in favour of respondent – Appellant site owner appealing – Whether tribunal failing to recognise significance of paragraph 34(12) and paragraph 17 of Code – Whether upgrading and sharing rights limited to test in paragraph 17 – Appeal dismissed
The appellant was the freehold owner of Dale Park Estate in Madehurst, West Sussex, which included 39 residential properties and more than 2,000 acres of agricultural land, farm buildings and woodland.
In 1999, the appellant granted a 20-year lease of a small woodland site on the estate with a view to accommodating a telecommunications mast. The lease conferred a right to install the necessary equipment and thereafter to inspect, maintain, adjust, repair, alter and renew the same. Since 2000, the lease had been held by the respondent, a wholesale infrastructure provider.
When the lease expired, the respondent sought a new lease, with extended equipment upgrading and sharing rights, under part 5 of schedule 3A to the Communications Act 2003 (the Code), which enabled infrastructure providers to acquire Code rights provided that they were designated as “Code operators” under section 106. The respondent had been so designated.
The appellant, as the freehold owner of the site, did not object to the grant of a new lease. However, a number of its terms had not been agreed and a reference was made under schedule 3A to the 2003 Act to the Upper Tribunal, which decided the disputed points in favour of the respondent: [2020] UKUT 348 (LC); [2020] PLSCS 229.
The appellant appealed, contending that the tribunal had failed to recognise the significance of paragraph 34(12) and paragraph 17 of the Code. Among other things, it had erred by treating paragraph 17 as a floor setting out the minimum rights an operator was to have, whereas paragraph 17 set a benchmark or standard which parliament had decided struck a fair balance between the interests of operators and those of site providers.
Held: The appeal was dismissed.
(1) Paragraph 34(12) of the Code provided that the court should have regard to the terms of the existing Code agreement. The appellant argued that the tribunal wrongly failed to pay any regard to the terms of the 1999 lease. However, the guidance provided in O’May v City of London Real Property Co Ltd [1983] 2 AC 726; [1982] 26 EG 1185 in cases under the Landlord and Tenant Act 1954 as to the weight to be attached to the terms of the existing agreement were not directly applicable to Code renewals. The terms of the existing agreement might be relevant in some cases, but not in others.
As they stood, the provisions of the 1999 lease as to upgrading and sharing were consistent with neither the purposes of the Code nor its terms. Paragraph 17 of the Code gave the respondent automatic upgrading and sharing rights at odds with the 1999 lease, and the Code also required the consideration payable to a site provider to be assessed on a “no scheme” basis. The appellant was arguing for the respondent to have narrower rights than had been conferred by the 1999 lease, while the respondent sought more extensive ones. A wholly new form of agreement was appropriate. Therefore, there was no need for the tribunal to refer to paragraph 34(12). The parties did not suggest that it was significant, and it was not: O’May, Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2021] EGLR 14 and EE Ltd v Stephenson [2021] UKUT 167 (LC); [2021] PLSCS 129 considered.
(2) Paragraph 17 of the Code provides for an operator to be entitled to upgrade or share the use of electronic communications apparatus if any changes to the apparatus have no adverse impact, or no more than a minimal adverse impact, on its appearance and the upgrading or sharing imposes no additional burden on the site provider.
In the present case, the court had not been persuaded that the tribunal’s assessment of the significance of paragraph 17 was other than correct. While paragraph 17 provided a starting point and it was incumbent on an operator seeking more extensive rights to explain why, it need not establish “pretty striking circumstances” or “pretty compelling circumstances”. Nor was it the case that an application for wider rights was to be approached on the basis that it was inherently improbable that such rights were appropriate. Each application had to be assessed on its particular merits: Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755; [2019] PLSCS 201; [2020] 1 P&CR 15, Cornerstone Telecommunications Infrastructure Ltd v Fothringham (unreported, 11 August 2020) and Cornerstone Telecommunications Infrastructure Ltd v London and Quadrant Housing Trust [2020] UKUT 282 (LC); [2020] PLSCS 187 considered.
(3) In all the circumstances, the tribunal was amply justified in concluding that the new agreement between the appellant and the respondent should include the terms as to installation, upgrading and sharing sought by the respondent. The tribunal took account of the appellant’s concerns, but considered that there would be ample protections in the agreement, combined with the control exercised by the local planning authority and the extra protection afforded in the National Park. The agreement and planning law, the tribunal said, provided the protection that the appellant needed from the levels of nuisance and disturbance that could realistically be anticipated. Further, the tribunal was fully entitled to take the view that the respondent had sufficient reason for wanting the terms it proposed.
(4) There was evidence supporting the tribunal’s assessment that a limit on equipment or upgrading would cause the respondent extensive difficulties and that the advance of technology created a practical need for the respondent, and the respondent’s evidence of the public benefit of what it sought was unchallenged. Moreover, while inability to share this particular site might not be fatal to the respondent, the tribunal was correct to see ability to share as key to the respondent’s business as a neutral host. Uncertainty as to the future was not a bar to the respondent being given the rights it asked for but afforded a compelling basis to accede to its application. There was very good reason to give the respondent upgrading and sharing rights beyond those for which paragraph 17 of the Code provided.
Christopher Pymont QC and Wayne Clark (instructed by Eversheds Sutherland (International) LLP) appeared for the appellant; Oliver Radley-Gardner QC and Justin Kitson (instructed by Pinsent Masons LLP) appeared for the respondent,
Eileen O’Grady, barrister
Click here to read a transcript of On Tower UK Ltd v JH & FW Green Ltd
