On Tower UK Limited v JH & FW Green Limited

Under the Communications Act 2003 Code, the Tribunal may impose each disputed Code right where the prejudice is compensable in money and is outweighed by the resulting public benefit. It must then use appropriate terms to ensure the least possible loss and damage.

Paragraph 17 provides a minimum entitlement to share and upgrade. It does not create a presumption that more extensive rights require exceptional justification. An unrestricted right may be appropriate where it is necessary to an infrastructure provider’s business and the site provider’s evidenced concerns are sufficiently protected by the agreement, planning controls and compensation.

Consideration under paragraph 24 is assessed on the no-network assumption. It may reflect foreseeable burdens created by the agreement, while avoiding double recovery through later compensation.

On Tower UK Limited, a designated infrastructure provider, occupied a woodland telecommunications site on the Dale Park Estate under a lease which expired in March 2019. It sought a new agreement under Part 5 of Schedule 3A to the Communications Act 2003.

The freeholder accepted that a new agreement should be granted, but disputed the permitted equipment, unrestricted upgrading and sharing rights, and the annual consideration. The site lay in a rural estate within the South Downs National Park and close to residential properties. The Tribunal had to determine whether the rights sought should be imposed, and the consideration and compensation payable.

1. New agreement imposed. The Tribunal held that the conditions in paragraph 21 of the Code were met for unrestricted rights to install and keep electronic communications apparatus and to upgrade it. The limited prejudice established by the site provider was capable of monetary compensation and was outweighed by the public benefit of the rights sought. Existing contractual protections, planning control and the National Park setting sufficiently addressed the realistic risks of nuisance, access disturbance and visual impact.

2. Sharing and upgrading. Paragraph 17 was a floor, not a ceiling. The Tribunal respectfully disagreed with the suggestion in Cornerstone Telecommunications Infrastructure Limited v Fothringham that compelling evidence was required to go beyond paragraph 17. The unrestricted right to share was appropriate because sharing was central to the claimant’s infrastructure business and statutory purpose. The respondent’s concerns did not justify restricting the right to particular operators or imposing the paragraph 17 conditions.

3. Approach to non-Code sharing terms. Although unrestricted sharing was not itself a Code right, the Tribunal had discretion to impose it subject to paragraph 23(5). It should consider the operator’s business need and the public interest, then the site provider’s objections and whether restrictions or protective terms are needed to minimise loss or damage.

4. Consideration. Applying paragraph 24 on the no-network assumption, and the three-stage approach adopted in Cornerstone Telecommunications Infrastructure Limited v London and Quadrant Housing Trust, the Tribunal assessed £100 for alternative use, £600 for additional benefits to the claimant, and £500 for burdens on the respondent. The annual consideration was therefore £1,200. The burden allowance reflected access through the private estate, unrestricted sharing, foreseeable upgrading works and perceived amenity effects.

5. Compensation. The claimant was ordered to pay £7,957.90 plus VAT for transactional legal costs. The Tribunal deferred valuation fees pending a breakdown excluding work directed to the Tribunal proceedings.

• Upper Tribunal (Lands Chamber): First-instance reference under Part 5 of Schedule 3A to the Communications Act 2003. The Tribunal determined the outstanding terms of the replacement lease.