Introduction

The case of On Tower UK Ltd v JH & FW Green Ltd ([2021] EWCA Civ 1858) marks a significant decision by the England and Wales Court of Appeal (Civil Division) concerning the interpretation and application of the Electronic Communications Code ("the Code") under the Telecommunications Act 1984, as amended by the Digital Economy Act 2017. This case primarily examined the extent of upgrading and sharing rights that should be granted to On Tower UK Limited ("On Tower"), a wholesale infrastructure provider, over the land owned by J.H. & F.W. Green Limited ("J.H. & F.W. Green") in Dale Park Estate, West Sussex.

The central issues revolved around whether the Tribunal correctly imposed **unrestricted upgrading and sharing rights** on On Tower under the Code, and whether the Tribunal erred in its approach by possibly misapplying the relevant provisions of the Code.

Summary of the Judgment

The appellant, J.H. & F.W. Green, sought to challenge the Upper Tribunal's decision to grant On Tower expansive rights to install, upgrade, and share telecommunications equipment on its estate. On Tower, as an infrastructure provider, aimed to maintain flexibility for future technological advancements such as the deployment of 5G networks.

The Upper Tribunal initially favored On Tower by imposing a new 10-year agreement that included the desired upgrading and sharing rights, alongside an annual compensation of £1,200 to J.H. & F.W. Green. J.H. & F.W. Green contended that the Tribunal had misapplied the Code, particularly confusing **Part 4** (relating to the imposition of agreement) with **Part 5** (addressing termination and modification of agreements), thereby neglecting crucial provisions like paragraphs 34(12) and 17 of the Code.

Upon appeal, the Court of Appeal scrutinized these claims, ultimately dismissing the appeal and upholding the Tribunal's decision. The Court affirmed that the Tribunal appropriately interpreted and applied the Code, particularly emphasizing the discretionary power to grant unrestricted rights when justified by public interest and business needs, even if it deviated from pre-existing agreements.

Analysis

Precedents Cited

The judgment referenced several key legal precedents and statutory provisions:

• Landlord and Tenant Act 1954: Particularly section 35, which guides courts in renewing business tenancies, emphasizing fairness and existing lease terms.
• O'May v City of London Real Property Co Ltd [1983] 2 AC 726: Highlighting that courts must start by considering existing tenancy terms but can modify them based on fairness.
• Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd [2021] EWCA Civ 90: Clarifying that existing code agreements must be regarded but do not necessarily constrain broader rights.
• EE Ltd v Stephenson [2021] UKUT 167 (LC): Differentiating the purposes of the Code from traditional tenancy laws.

These precedents collectively influenced the Court of Appeal's approach, reinforcing the Tribunal's discretion under the Code to prioritize public interest and the operational needs of telecommunications operators over restrictive pre-existing agreements.

Legal Reasoning

The Court of Appeal meticulously analyzed the Tribunal's application of the Code, particularly focusing on:

• Paragraph 17 of the Code: Sets a minimum standard for upgrading and sharing rights, allowing these actions provided they do not adversely impact the land's appearance or impose additional burdens on the landowner.
• Paragraph 34(12) of the Code: Requires the court to consider the terms of any existing code agreement when imposing new terms.

The Court concluded that the Tribunal had appropriately interpreted these provisions:

• The Tribunal viewed paragraph 17 as a foundational baseline ("a floor") and exercised discretion to grant broader rights to On Tower, justified by the public interest in advancing telecommunications infrastructure.
• The Tribunal appropriately balanced On Tower's need for flexibility against J.H. & F.W. Green's concerns, determining that potential adverse impacts were either minimal or compensable.

The Court rejected arguments that the Tribunal had conflated Parts 4 and 5 of the Code or had failed to consider paragraph 34(12). It maintained that the Tribunal's approach remained within its discretionary powers and aligned with the Code's objectives.

Impact

This judgment solidifies the framework within which telecommunications operators can negotiate upgrading and sharing rights over landowners' properties. Key implications include:

• **Enhanced Operator Flexibility**: Operators like On Tower can secure broader rights essential for adapting to technological advancements without being unduly restricted by pre-existing agreements.
• **Balancing Public and Private Interests**: Courts will continue to prioritize public interest in advancing digital infrastructure while ensuring landowners are fairly compensated for any inconvenience or impact.
• **Legal Clarity for Future Cases**: The affirmation of the Tribunal's discretion reinforces the interpretative boundaries of the Code, providing clearer guidelines for both operators and landowners in future disputes.

Complex Concepts Simplified

Electronic Communications Code (the Code)

A statutory framework introduced by the Digital Economy Act 2017, replacing the Telecommunications Act 1984. It governs the relationship between telecommunications operators and landowners, outlining the rights and obligations for installing and maintaining electronic communications equipment.

Code Rights

Specific statutory rights granted to operators under the Code, allowing them to install, maintain, upgrade, and share electronic communications equipment on designated land. These rights are detailed in Schedule 3A of the Code and include provisions for accessing land, connecting to power supplies, and removing vegetation that may interfere with equipment.

Paragraph 17 of the Code

Establishes minimum standards for upgrading and sharing rights. Operators can upgrade or share equipment provided that such actions do not adversely affect the land's appearance or impose additional burdens on the landowner.

Paragraph 34(12) of the Code

Mandates that when imposing new code agreements, courts must consider the terms of any existing agreements. This ensures continuity and fairness, preventing operators from unilaterally imposing terms that significantly diverge from prior arrangements without justification.

Sharing Rights

The ability of a telecommunications operator to allow third parties to use their equipment or infrastructure on the same site. Sharing can maximize the efficiency of existing structures and facilitate broader network coverage.

Conclusion

The decision in On Tower UK Ltd v JH & FW Green Ltd underscores the judiciary's role in interpreting the Electronic Communications Code in a manner that balances technological advancement and public interest with the rights and concerns of landowners. By affirming the Tribunal's discretion to grant unrestricted upgrading and sharing rights, the Court of Appeal has reinforced the framework that facilitates the rapid deployment and evolution of telecommunications infrastructure in the UK.

This judgment serves as a pivotal reference for future disputes involving the Code, clarifying the extent of operators' rights and the compensatory mechanisms available to landowners. It highlights the importance of flexibility in long-term agreements to accommodate unforeseen technological developments while ensuring that landowners are not unfairly burdened.

Overall, the case advances the legal landscape for electronic communications infrastructure, promoting a balanced approach that fosters innovation and connectivity without compromising the interests of property owners.