The tribunal addresses equipment caps, upgrading and sharing
The Court of Appeal’s decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp [2019] EWCA Civ 1755; [2019] PLSCS 201 suggests that operators cannot apply to the tribunal for additional rights once an agreement has been imposed. And this has caused concern that, due to fast-moving technology, operators will have to negotiate for any further rights that they need, outside the protection of the Code – which will be both expensive and time-consuming.
Hence the litigation in On Tower UK Ltd v JH & FW Green Ltd [2020] UKUT 348 (LC); [2020] PLSCS 229. The operator, formerly known as Arqiva Services Ltd, provides masts, cabinets and other equipment for use by mobile network operators. Its lease of a telecommunications mast on a small woodland site in the South Downs National Park, but with dwellings in close proximity, had expired and it was seeking a new lease containing provisions enabling it to install, add and substitute any equipment that it chose, and to upgrade it, together with provisions enabling it to share its equipment with mobile network operators without any qualification.
The Upper Tribunal dealt first with the operator’s right to install and upgrade its equipment. It was unimpressed by the landowner’s arguments that a new mast could be hundreds of metres tall and that safety regulations could require it to be festooned with lights and covered in dayglo paint to prevent aircraft flying into it. The size of the site made that as impossible as it was implausible. And, although it took the landowner’s concerns about traffic, noise, security and visual intrusion more seriously, it considered that these concerns could be addressed by protections in the parties’ agreement (combined with the control exercised by the local planning authority and the extra protection afforded in the National Park) and that the landowner could be compensated for any limited prejudice that it did suffer.
The Court of Appeal’s decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp [2019] EWCA Civ 1755; [2019] PLSCS 201 suggests that operators cannot apply to the tribunal for additional rights once an agreement has been imposed. And this has caused concern that, due to fast-moving technology, operators will have to negotiate for any further rights that they need, outside the protection of the Code – which will be both expensive and time-consuming.
Hence the litigation in On Tower UK Ltd v JH & FW Green Ltd [2020] UKUT 348 (LC); [2020] PLSCS 229. The operator, formerly known as Arqiva Services Ltd, provides masts, cabinets and other equipment for use by mobile network operators. Its lease of a telecommunications mast on a small woodland site in the South Downs National Park, but with dwellings in close proximity, had expired and it was seeking a new lease containing provisions enabling it to install, add and substitute any equipment that it chose, and to upgrade it, together with provisions enabling it to share its equipment with mobile network operators without any qualification.
The Upper Tribunal dealt first with the operator’s right to install and upgrade its equipment. It was unimpressed by the landowner’s arguments that a new mast could be hundreds of metres tall and that safety regulations could require it to be festooned with lights and covered in dayglo paint to prevent aircraft flying into it. The size of the site made that as impossible as it was implausible. And, although it took the landowner’s concerns about traffic, noise, security and visual intrusion more seriously, it considered that these concerns could be addressed by protections in the parties’ agreement (combined with the control exercised by the local planning authority and the extra protection afforded in the National Park) and that the landowner could be compensated for any limited prejudice that it did suffer.
But on what basis could the operator claim more extensive sharing rights than the Code provides for? The tribunal had a discretion as to whether or not to impose such a term. However, the ability to share was central to the operator’s business as a neutral host, and there was no case for restricting such a right to any particular network operator or to a specified number of operators. On a rooftop site, extended sharing rights would cause obvious difficulties as a result of the increased footfall within a building. But this was a woodland site and the tribunal decided to grant the operator an unrestricted right to share.
Turning next to the question of consideration and compensation, the tribunal settled on a cumulative figure of £1,200 per annum, comprising £100 for the rental value for the current use or the most valuable non-network use of the site, £600 for the benefits to the operator (such as the rights to keep its existing mast or another tall structure on the site, to maintain connections to an electricity supply, to enter onto the landowner’s adjoining land to carry out temporary works or to install an emergency generator and to prune or trim the landowner’s trees, as well as a rolling break clause after five years) and £500 for burdens imposed on the landowner (such as regular access by site sharers, the occasional use of a generator, increased access during upgrading activities and loss of amenity resulting from the new mast itself). And, finally, the tribunal awarded the landowner £7,958 plus VAT as compensation for its legal costs.
Allyson Colby, property law consultant
