On Tower UK Ltd v J H & F W Green Ltd [2020] UKUT 348 (LC)

Summary

The Upper Tribunal has, for the first time, determined the rent payable for a lease renewal under Part 5 of the Electronic Communications Code. Suffice to say, the sums payable to the land owner were not particularly generous. The decision further highlights the Code's roll as a form of compulsory purchase.

The facts

The claim was brought by On Tower UK Ltd, a wholesale infrastructure provider, who has a telecoms mast and other equipment installed on a rural greenfield site known as Dale Park Estate. The claimant sought a new lease under the Code, and although the site provider did not object to the grant of a new lease, several issues remained in dispute between the parties namely:

• what equipment could the claimant install?
• should there be any limit on the claimant’s right to upgrade its equipment?
• should there be any limit on the claimant’s right to share the site?
• what should be the consideration payable by the claimant to the respondent?

The decision

It was crucial to the claimant as a "neutral host" to have unlimited rights to install, upgrade and share electronic communications apparatus. However, the respondent wanted to limit rights to install apparatus to a specified list and its rights to upgrade and share the apparatus to those specified in paragraph 17 of the Code.

The Tribunal granted all three rights on an unlimited basis to allow the claimant to keep up with fast-moving developments in technology and enable the claimant to fulfil its statutory purpose.

The Tribunal also assessed the rent payable by the claimant under the agreement by using the three-stage approach adopted in CTIL v London and Quadrant Housing Trust and held that the claimant should pay rent of £1,200 per annum, comprised of £100 for the alternative use value of the site, £600 to reflect the additional benefits conferred on the claimant and £500 as compensation for burdens on the site provider.

The Tribunal commented on the special circumstance of this site, being a rural site with residential dwellings in close proximity, and explained that in the absence of these circumstances, the value of the burdens would be lower, leading to an overall rent figure of £750 per annum.

Our comment

This decision is significant as it is the first time that the Tribunal has had to determine the rent for a lease renewal under Part 5 of the Code, giving a degree of certainty to both operators and site providers.

It also clarifies the law relating to upgrading and sharing and has made clear that the default rights conferred as a result of entering into a Code agreement are a statutory floor, as opposed to a ceiling.