On Tower UK Ltd v JH & FW Green Ltd [2021] EWCA Civ 1858 (07 December 2021)

On Tower UK Ltd v JH & FW Green Ltd [2021] EWCA Civ 1858 (07 December 2021)

The Tribunal did not err in law by granting unrestricted upgrading and sharing rights to the operator. Paragraph 17 of the Code sets a minimum, not a ceiling, and the Tribunal has discretion to grant more extensive rights if justified. The requirement to have regard to the existing agreement (paragraph 34(12)) does not create a presumption against change, especially where the existing terms are inconsistent with the Code's objectives. The Tribunal considered all relevant circumstances and the operator's business needs, and its decision stands.

Citation
[2020] UKUT 348
Parties
Claimant/respondent: On Tower UK Limited; Respondent/appellant: J. H. & F. W. Green Limited
Jurisdiction
England and Wales
Judgment Date
07 December 2021
Procedural Posture
Appeal From Upper Tribunal (lands Chamber) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Electronic Communications Code, Lease Renewal, Upgrading and Sharing Rights, Statutory Interpretation, Landlord and Tenant Act 1954
Property Law Telecommunications Law Electronic Communications Code Lease Renewal Upgrading and Sharing Rights Statutory Interpretation Landlord and Tenant Act 1954

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Parties

On Tower UK Limited

Claimant/respondent

J. H. & F. W. Green Limited

Respondent/appellant

Procedural Posture

Appeal From Upper Tribunal (lands Chamber) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the Tribunal erred in granting unrestricted upgrading and sharing rights to the operator under a new agreement imposed pursuant to the Electronic Communications Code.
  2. 2 The correct approach to the significance of paragraph 34(12) (regard to existing agreement) and paragraph 17 (upgrading/sharing rights) of the Code.

Ratio Decidendi

The Tribunal did not err in law by granting unrestricted upgrading and sharing rights to the operator. Paragraph 17 of the Code sets a minimum, not a ceiling, and the Tribunal has discretion to grant more extensive rights if justified. The requirement to have regard to the existing agreement (paragraph 34(12)) does not create a presumption against change, especially where the existing terms are inconsistent with the Code's objectives. The Tribunal considered all relevant circumstances and the operator's business needs, and its decision stands.

Court Disposition

Appeal dismissed

Orders

  • The decision of the Upper Tribunal (Lands Chamber) is affirmed.
  • On Tower UK Limited is entitled to unrestricted upgrading and sharing rights under the new agreement.