On Tower UK Limited v AP Wireless II (UK) Limited

Where a Code agreement gives the operator exclusive possession and no operational control is reserved to the site provider, responsibility for the safety of telecommunications apparatus and operations rests with the operator. A site provider should not be given a management role merely to protect it from hypothetical civil or criminal liability; control may itself create statutory duties.

In settling renewal terms, the Tribunal must consider the operator’s business and technical needs and the public interest, then determine whether qualifications are needed to secure the least possible loss and damage. An infrastructure provider may require unrestricted sharing and upgrading where site-provider concerns are adequately protected by other terms. Consideration under Communications Act 2003, Schedule 3A, paragraph 24 is assessed on the statutory no-network assumptions, using alternative-use value together with relevant benefits and burdens.

The claimant was a wholesale telecommunications infrastructure provider operating three ground-level mast and cabinet sites at Audley House, Port Talbot and Huntingdon. The respondent held intermediate leases of the sites and had become the site provider when the claimant’s former agreements expired.

The parties agreed that new 15-year Code leases should be granted, but disputed numerous terms. The principal dispute concerned whether the respondent needed to control access, receive safety documentation and use its access portal because of possible health-and-safety liability. Other issues included sharing, upgrading, access rights, generators, conduits, break clauses, rent review and consideration.

The Tribunal determined two references under Schedule 3A to the Communications Act 2003 and settled the terms and annual consideration of the new agreements.

1. The references were determined and new 15-year Code leases were to be settled on the terms directed by the Tribunal. The claimant was entitled to unrestricted access to all three sites, without the respondent’s access portal, access policy, prior notice, prescribed access hours, safety method statements or risk assessments. The leases were to require the claimant to provide its own access records if the respondent faced or was threatened with legal action.

2. A site provider that gives exclusive possession and retains no relevant control is not responsible for the safe operation of the operator’s site. The operator bears responsibility for site safety, compensation under Schedule 3A, paragraph 25, and any applicable civil or criminal liability. Under section 3 of the Health and Safety at Work Act 1974, a duty depends on the conduct of the person’s undertaking. Under section 4, a duty depends on control of the premises or access. The respondent’s business as a professional site provider did not make every let site part of its undertaking, and its intermediate leases did not oblige it to manage safety or restrict access.

3. Applying the approach in On Tower Limited v JH and FW Green Limited ([2020] UKUT 348 (LC)), the Tribunal considered the claimant’s operational needs and whether the respondent’s concerns required qualification to minimise loss and damage. The claimant’s need for unlimited sharing and upgrading was integral to its business. The sites’ industrial character, the respondent’s lack of physical presence, and existing indemnity and compensation protections meant that restrictions based on Schedule 3A, paragraph 17 were unjustified. Sharing could extend to non-Code operators and to the sites themselves, subject to an express proviso that the respondent did not agree to be bound by Code rights granted by the claimant to others.

4. The Tribunal allowed parking, loading, unloading and turning on the defined access, so far as the respondent could grant those rights, subject to a non-obstruction covenant. It allowed access to surrounding superior-landlord land on 48 hours’ notice in cases of emergency or operational urgency, but excluded access to buildings. Consent was required for installing, re-routing or upgrading conduits on superior-landlord land, but not for their routine maintenance.

5. The claimant’s agreed duties concerning planning, safe repair, nuisance, indemnity and insurance sufficiently protected the respondent. Additional safety-management, ICNRP-certification, planning-notification and liability-exclusion provisions were rejected. A landlord redevelopment break was allowed, since termination would still be subject to the statutory protection in Schedule 3A, paragraph 31(4)(c).

6. Annual consideration was fixed at £3,500 for Audley House, £2,050 for Port Talbot and £2,100 for Huntingdon. The Audley House headlease restriction to telecommunications use was ignored when identifying alternative-use value, because doing so was an inevitable consequence of the paragraph 24 no-network assumption. The respondent’s reasonable transaction costs were allowed as claimed.

Not an appeal. The references arose after the contractual terms of the parties’ existing telecommunications agreements expired. The Tribunal determined the terms of replacement agreements under Schedule 3A to the Communications Act 2003.