The Upper Tribunal (Lands Chamber) has addressed the question of what responsibility owners and occupiers of land have for the safe operation of electronic communications sites which they are legally obliged to have on their land in On Tower UK Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152 (LC); [2022] PLSCS 133.
The case concerned three small telecommunications sites at ground level in industrial areas which had been operated by the claimant for some years under leases whose contractual terms had expired. There was no opposition from the respondent to the grant of new 15-year terms for each site, but the parties could not agree the terms of the new leases and so references were made to the tribunal to determine the terms under section 34 of the Electronic Communications Code.
The purpose underlying the Code is to ensure that operators can use and exploit sites more flexibly, quickly and cheaply than previously, at lower than market rents, in furtherance of the public interest in providing access to a choice of high-quality electronic networks, while providing protection to site owners’ legitimate interests: EE Ltd and another v Stephenson and another [2021] UKUT 167 (LC); [2021] PLSCS 129. The respondent sought many terms which the claimant operator did not want. The tribunal had to look at whether the effect of those terms on the claimant’s business and the efficiency of its operations were in the public interest.
The respondent contended that it needed to protect itself from the risk of being held liable for the safety of the sites, including criminal liability, and required the claimant to comply with its detailed access policy and use its access portal for the submission and grant of access requests. Such requirements were resisted on the grounds that they duplicated the claimant’s own systems, would cause delay and expense and were an unnecessary restriction on access and the operational flexibility it required.
The tribunal found that it was no part of the Code that a site provider was responsible, let alone criminally liable, for the safety of a telecommunications site on its land. Such fear was wholly unrealistic where exclusive possession of the site has been relinquished under the Code and the provider has no control over what goes on there. The respondent was not operating the sites, and it did not have sufficient control of access to them to make it liable under the Health and Safety at Work Act 1974. The claimant did not have to comply with the access policy or the access portal, there was no requirement to give the respondent notice of access and there was no restriction on hours of access to the sites.
The tribunal also granted the claimant unlimited rights to upgrade its equipment and to share the occupation and use of the sites and the Code rights with other providers. Such rights were integral to the claimant’s business and there were no provisions in the respondents’ intermediate leases which prevented them. The consideration was set following the three-stage valuation approach considered in Vodafone v Hanover Capital [2020] EW Misc 18 (CC); [2020] EGLR 35, and the judgment includes a summary of recent decisions made on this basis.
Louise Clark is a property law consultant and mediator
