17
(1)
An operator (“the main operator”) who has entered into an agreement under Part 2 of this code may, if the conditions in sub-paragraphs (2) and (3) are met—
(a)
upgrade the electronic communications apparatus to which the agreement relates, or
(b)
share the use of such electronic communications apparatus with another operator.
(2)
The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.
(3)
The second condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.
(4)
For the purposes of sub-paragraph (3) an additional burden includes anything that—
(a)
has an additional adverse effect on the other party's enjoyment of the land, or
(b)
causes additional loss, damage or expense to that party.
(5)
Any agreement under Part 2 of this code is void to the extent that—
(a)
it prevents or limits the upgrading or sharing, in a case where the conditions in sub-paragraphs (2) and (3) are met, of the electronic communications apparatus to which the agreement relates, or
(b)
it makes upgrading or sharing of such apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).
(6)
References in this paragraph to sharing electronic communications apparatus include carrying out works to the apparatus to enable such sharing to take place.
Cases considering Schedule 3A, paragraph 17 4
[2023] EWCA Civ 825 · 14 July 2023Defines
Permits upgrading or sharing of apparatus where the conditions in the following subparagraphs are satisfied.
Requires that upgrading or sharing impose no additional burden on the other party to the agreement.
Defines additional burden by reference to adverse effects on enjoyment of land or additional loss, damage or expense.
[2022] UKUT 152 (LC) · 17 June 2022Interprets
Paragraph 17 supplies a statutory minimum for upgrading and sharing, but does not limit the Tribunal’s ability to confer wider rights. Unlimited rights were justified by the infrastructure provider’s business needs and caused no demonstrated additional loss or damage. (see paras [113]-[115]; [122]-[128])
[2020] UKUT 348 (LC) · 29 October 2020Limits
Paragraph 17 creates a basic right to upgrade and share. The Tribunal held that it is a floor rather than a ceiling and does not make more extensive rights unusual or specially difficult to justify. (see paras [23]-[25]; [58]-[60])
The appearance condition defines the minimum statutory upgrading and sharing entitlement. The Tribunal held that its conditions were not required for the broader rights imposed in this case. (see paras [18]; [25]; [67])
The no-additional-burden condition defines the minimum statutory upgrading and sharing entitlement. The Tribunal concluded that contractual safeguards, planning controls and compensation made it unnecessary to confine the rights by that condition. (see paras [18]; [25]; [67])
What each judgment says about Schedule 3A, paragraph 17 is in the case-law panel in the full Act.