Thursday 18th November 2021
JH & FW Green Ltd, the Appellant here (and the Respondent in the Upper Tribunal), the site provider, appeals with permission from the Upper Tribunal (Lands Chamber), the UT’s decision dated 15 December 2020, in particular the parts of the decision regarding the unlimited and unrestricted rights granted to the Claimant, On Tower UK Ltd (formerly Arqiva Services Ltd), (the operator) .
The UT was considering a Reference under Schedule 3A to the Communications Act 2003 (the Electronic Communication Code, the Code).
The operator is a wholesale infrastructure provider for the use of mobile network operators and a ” Code Operator” under s106 of the 2003 Act. The operator has a mast & other equipment on a small woodland site within the South Downs National Park pursuant to a lease granted in 1999. It expired in March 2019 and the operator sought a new lease under Part 5 of Schedule 3A of the Code. Dispute between the parties over 3 terms of the new lease regarding the operator’s 1) rights to install and keep electronic communications apparatus (ECA) on the site 2) rights to upgrade the equipment without qualification 3) and to share its equipment.
Issue on this appeal is the proper approach to be taken by the UT to the question of what terms are to be included in a renewal of an existing Code agreement. Whether the UT in this case approached the matter as if it were an application for new Code rights under Part 4 rather for a renewal of an existing Code agreement in accordance with Part 5 (and in particular paragraphs 33 & 34).
Lower Court Judgment: