Reasons to choose Wilson Browne
In the December 2020 case of On Tower UK Ltd v J H & F W Green Ltd The Upper Tribunal (Lands Chamber) (the Tribunal) has determined the outstanding terms of a renewal lease under the 2017 Electronic Communications Code (2017 Code) in favour of the claimant operator.
It was crucial to the operator’s business as a “neutral host” wholesale infrastructure operator to have unlimited rights to install, upgrade and share electronic communications apparatus on the site. Applying the “public benefit” test set out in paragraph 21 of the 2017 Code, the public benefit likely to result from granting these rights outweighed any potential prejudice to the site owner, which could be adequately compensated by money.
The operator’s lease of the site had expired in 2019 and the operator applied to the Tribunal for an order imposing a new lease under the 2017 Code. The landowner accepted that the operator was entitled to a new lease. However, the landowner wanted to limit the operator’s right to install apparatus to a specified list and its rights to upgrade and share the apparatus to paragraph 17 of the 2017 Code.
Having considered the evidence, the Tribunal granted all three rights on an unqualified basis, to allow the operator to keep up with fast-moving developments in technology and the demands of its network operator customers. The landowner would be protected by the greater planning controls in the area and the remaining terms of the agreement.
The Tribunal also assessed the consideration payable by the operator under the agreement and held that it should include compensation for the potential adverse effect of the additional rights.
This decision is significant as it is the first time that the Upper Tribunal has had to determine the consideration and compensation for a lease renewal under Part 5 of the 2017 Code.
As technology advances and public demand for high-quality electronic communications increases, it is likely that existing apparatus will need to be changed to allow network operators to keep pace with developments. The Upper Tribunal’s grant of unlimited rights may therefore be welcomed by operators, although it will raise concern with many landowners.