Automated Summary
Key Facts
The Upper Tribunal (Lands Chamber) considered a reference regarding the imposition of terms under the Electronic Communications Code for a rooftop site at Maple House in London. CTIL (a joint venture of Telefonica UK and Vodafone) sought unrestricted rights to install, upgrade, and share telecommunications equipment, while London & Quadrant Housing Trust (L&Q) proposed limitations under paragraph 17 of the Code. The Tribunal rejected an equipment cap and permitted unrestricted upgrading but limited sharing to two providers. Annual consideration was set at £5,000, and compensation for L&Q's legal expenses was awarded at £3,068.
Transaction Type
The transaction involves a Code agreement under the Electronic Communications Code for the lease of a rooftop site at Maple House in London. CTIL (Cornerstone Telecommunications Infrastructure Limited) seeks rights to install, maintain, and upgrade telecommunications apparatus on the site, with terms imposed by the Tribunal. The agreement includes annual consideration of £5,000 and compensation for legal expenses, reflecting a statutory lease arrangement for infrastructure use.
Issues
- The second issue involved the scope of CTIL's rights to upgrade and share the installed ECA. L&Q sought to limit these rights by referencing paragraph 17 of the Code, which imposes conditions to prevent adverse impacts on appearance or additional burdens. CTIL argued for unrestricted rights to ensure technological adaptability. The Tribunal concluded that paragraph 17 represented minimum rights and granted CTIL unrestricted upgrading rights while imposing sharing restrictions to two providers.
- The first issue concerned L&Q's proposal to impose an equipment cap restricting CTIL's right to install electronic communications apparatus (ECA) on the rooftop site. CTIL opposed this, arguing for unrestricted installation rights. The Tribunal evaluated whether such a cap was justified, considering factors like building safety obligations and potential for future 5G upgrades. The cap was ultimately rejected as unnecessary and overly restrictive.
- The third issue focused on calculating the appropriate consideration under paragraph 24 and compensation under paragraph 25 of the Code. CTIL proposed £1,568.45 annually, while L&Q argued for £16,000. The Tribunal assessed market comparables (e.g., Brookstone Court, 22 Whitehall) and determined a £5,000 annual consideration, with additional compensation of £3,068 for legal costs. This balanced the site's nominal value with anticipated burdens from access and upgrades.
Holdings
- The Tribunal rejected the inclusion of an equipment cap, determining that such a restriction would be inflexible and potentially hinder CTIL's ability to provide services. The court emphasized that the agreement already includes safeguards to prevent overloading or unsafe installations, and the practical limitations of the site's structure and area make an equipment cap unnecessary.
- The Tribunal ruled that CTIL has unrestricted rights to upgrade its equipment but limited sharing rights to two providers (likely Telefonica and Vodafone). Additional sharing requires compliance with paragraph 17 of the Code, which imposes conditions on adverse impact and additional burdens. The decision balances CTIL's business model with L&Q's concerns about building safety and administrative burdens.
- The Tribunal determined the annual consideration payable by CTIL to be £5,000, reflecting a nominal site value, building maintenance benefits, access management, and anticipated costs of sharing/upgrading rights. Compensation for L&Q's legal expenses was set at £3,068. The court provided guidance that similar sites in residential buildings would likely have consideration within a narrow range of £5,000.
Remedies
- The Tribunal imposes an agreement on the parties, including the agreed terms and additional provisions determined by the Tribunal. This agreement grants CTIL the right to install and maintain electronic communications apparatus on the rooftop of Maple House, with specific conditions on upgrading and sharing.
- The Tribunal determines that the annual consideration payable under the agreement is £5,000. This amount reflects the nominal site value, the benefit of L&Q's maintenance and insurance obligations, and the anticipated costs of managing access and upgrades.
- The Tribunal awards compensation of £3,068 to L&Q for its reasonable legal expenses incurred in advising on and completing the agreement. This does not include costs from the proceedings themselves.
Monetary Damages
3068.00
Legal Principles
The tribunal adopted a purposive approach in interpreting the Electronic Communications Code, aligning with its statutory purpose to promote network expansion and sharing. This included assessing terms to minimize loss and damage to site providers while enabling operators to exercise code rights, particularly in relation to upgrading and sharing provisions under paragraphs 23 and 17 of the Code. The decision also highlighted the importance of balancing public policy objectives with the site provider's obligations, such as building safety requirements.
Precedent Name
- Norwich Union Life Insurance Society v British Railways Board
- Vodafone v Hanover Capital
- Cornerstone v University of the Arts, London
- Cornerstone v Compton Beauchamp
- Director of Buildings and Lands v Shun Fung Ironworks Ltd
- Cornerstone v Keast
- EE v Islington LBC
Key Disputed Contract Clauses
- The first key disputed clause concerned the inclusion of an equipment cap to limit CTIL's right to install electronic communications apparatus. L&Q argued for a cap to ensure structural safety and compliance with future building regulations, while CTIL opposed it as overly restrictive. The Tribunal rejected the cap, finding it unnecessary due to existing safeguards and practical site limitations.
- The second disputed clause centered on CTIL's rights to upgrade and share the installed equipment. CTIL sought unrestricted rights to facilitate technological advancements (e.g., 5G), while L&Q advocated for limitations under paragraph 17 of the Code. The Tribunal granted unrestricted upgrading but limited sharing to two providers, balancing CTIL's operational needs with L&Q's concerns about building safety and administrative burdens.
- The third key clause involved the notice period CTIL must provide for assignments or sharing of rights. CTIL proposed a 2-month notice, while L&Q sought 21 days. The Tribunal adopted the 21-day requirement, citing market precedents and the need for timely compliance with L&Q's building safety obligations.
Cited Statute
- Tribunals, Courts and Enforcement Act 2007
- Landlord and Tenant Act 1954
- Communications Act 2003
Judge Name
- Martin Rodger QC
- Mrs D Martin MRICS FAAV
Passage Text
- In our judgment consideration under the paragraph 24 hypothesis would be agreed between willing parties at £5,000 per annum... This would include an allowance to reflect the anticipated costs to the site provider of the operator's rights to share the benefits of the agreement with up to two others.
- We will make an order imposing an agreement on the parties... The annual consideration will be £5,000 and the compensation payable will be £3,068.
- We do not regard the minimal rights conferred by paragraph 17 as appropriate for an agreement between an infrastructure provider and a site provider for a term of ten years... To do so would diminish the public benefit which is the object of the agreement.
Damages / Relief Type
- Tribunal imposes agreement with £5,000 annual consideration and £3,068 compensation.
- Annual consideration of £5,000 awarded to L&Q for site usage and obligations.
- Compensation of £3,068 awarded for L&Q's legal expenses incurred in the agreement.