The Court of Appeal has confirmed, in On Tower UK v JH and FW Green Ltd that telecommunications operators can get unlimited rights to install, upgrade and share apparatus under the Part 5 of the Electronic Communications Code (the Code).
The Court confirmed the findings of the Upper Tribunal that On Tower (the Operator) were entitled to upgrade and share electronic communications at a site owned by JH and FW Green Ltd (the Landowner) without limitation. The Operator was seeking a new agreement under the Code following the expiry of its previous agreement granted over 20 years ago. The Landowner did not object to entering into a new agreement but wanted to place limitation on the Operator’s ability to share the equipment and upgrade the equipment in future.
The Landowner argued that the Upper Tribunal had not had sufficient regard to paragraph 34(12) of the Code which states that when determining the provisions of a new Code agreement in a renewal scenario, the terms of the previous agreement should be considered and taken account of. The Landowner sought to link this to the application of similar wording in the Landlord and Tenant Act 1954 which places significant weight on the provisions of previous leases in the determination of the terms of a renewal lease.
Paragraph 17 of the Code permits operators to upgrade and share apparatus provided there is no (or only minimal) impact on the appearance of the apparatus and no additional burden is placed on the landowner. The Court of Appeal agreed with the tribunal that Paragraph 17 “operates as a floor” and that these were the Operator’s minimum rights. The Operator was entitled to seek more extensive rights should it be able to explain why. In this case the Operator was seeking flexibility so that it could account for, among other things, technological advances and planning law. The Court of Appeal agreed with the tribunal that these reasons were justified.
This case confirms the position that there is really no limit on the upgrade and sharing rights operators can apply for under the Code. It will be welcome news to operators in giving them flexibility to upgrade and share during the terms of their agreements. For landowners it further underlines the wide rights given to operators under the Code.
Jonathan Cope