The Judgment on the first case of its kind - where the Tribunal has had to determine the consideration (rent) and compensation payable under paragraphs 24 and 25 of the New Telecoms - was handed down on 15 December 2020. The Tribunal also decided upon whether the operator should be granted unrestricted rights to upgrade and share their equipment with other providers.
The case of On Tower UK Limited v JH & FW Green Limited  UKUT 348 (LC) relates to the renewal of an existing telecoms agreement under the New Telecom Code at the Dale Park Estate of the South Downs National Park in West Sussex. The Estate is a greenfield, residential site with a number of nearby dwellings (some of the significant historical value) in close proximity to the telecoms apparatus belonging to On Tower UK Limited.
Consideration and Compensation
The Tribunal ultimately decided that this residential site attracted a rent of £1,200 per annum.
This sum comprises £100 for a potential alternative use of the land, £600 for the benefits enjoyed by the Operator and £500 for the burdens upon the landowner by virtue of the existence of the apparatus. The Tribunal also granted compensation to the landowner in the sum of £7,957.90 plus VAT (the full sum requested) for legal costs negotiating the new lease.
Unhelpfully for landowners, the Tribunal added that where there are greenfield sites which do not have the “special attributes” of this particular site, a figure of £750 per annum would be appropriate. This was decided on the basis of “no-network” considerations set out in the New Telecoms Code, as well as the comparable evidence of other renewal agreements entered into by the operator.
Whilst the Tribunal generally preferred the comparable evidence put forward by the operator in this case, some interesting points were raised in the Judgment. Whilst it was expected that rent would decrease, these points may help landowners negotiate higher rents under the new Code:
- The extent of the rights of access by the operator for maintenance and operation of the apparatus – the wider the rights and the more of a burden these are to the landowner and of benefit to the operator, the more valuable these will be;
- Whether there are any sharers – this would lead to increased access to the land by additional operators;
- Rights to upgrade and share the apparatus with others – this would lead to increased amounts of apparatus in the future etc., more visits to the site etc.;
- Rights to trim trees/other vegetation if these interfere with operations;
- To connect to a landowner’s electricity supply, and to use a separate generator in the event of a power outage;
- Whether there is a break clause in favour of the operator;
- Loss of amenity from the mast itself – there was a loss of amenity in this case in particular given that the land is a rural site with dwellings in close proximity.
Unrestricted Rights to Upgrade and Share
The Tribunal also granted the operator unrestricted rights to add to and upgrade their apparatus and unrestricted rights to share that apparatus with other operators. This goes beyond the statutory provisions for upgrading and sharing in paragraph 17 of the New Telecoms Code which include conditions which operators must meet in order to upgrade/share their equipment.
The Tribunal considered that without the unrestricted ability to share, the operator cannot fulfil its statutory purpose which would affect its business and this would be very onerous for the operator. The Tribunal also considered that allowing an unrestricted ability to upgrade and share is important in allowing the roll-out of new technology, such as 5G.
As a result, where an agreement exists with an infrastructure provider such as On Tower, landowners may need to reformulate their conditions on upgrading and sharing. However, where an agreement exists with a mobile operator there may be an argument that such operators do not require unrestricted rights to upgrade and share given that their business is not dependent on sharing with others as do infrastructure providers.
Our team can provide you with specialist advice on this case, and other cases that have recently been determined by the Tribunal to assist you in achieving the best rents and terms for new or renewals of telecoms agreements. Get in touch with us and we can have an initial discussion with you as to how we can help.
Please do not hesitate to get in contact with our specialist telecoms litigation team by contacting Justine Ball by email or 0121 214 0306. Alternatively, you can get in touch online or visit our telecoms lawyers page to learn more.
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