Decision Nº LC-2022-0000. Upper Tribunal (Lands Chamber), 26-08-2022
| Jurisdiction | UK Non-devolved |
| Judge | Martin Rodger KC, Deputy Chamber President |
| Date | 26 August 2022 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LC-2022-0000 |
Case No: H00BM926
IN THE COUNTY COURT AT BIRMINGHAM
Sitting at the Royal Courts of Justice,
London WC2A
26/08/2022
Before:
Martin Rodger QC, Deputy Chamber President, Upper Tribunal (Lands Chamber)
(sitting as a Judge of the County Court)
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Between :
ON TOWER UK LIMITED
Claimant
- and –
AP WIRELESS (II) UK LIMITED
Defendant
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Mr John McGhee QC and Mr Daniel Petrides (instructed by Pinsent Masons LLP) for the
Claimant
Mr Wayne Clark, Ms Fern Schofield and Mr Mike Atkins (instructed by Hugh James LLP)
for the Defendant
Hearing dates: 7, 8 and 9 June 2022
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JUDGMENT
County Court Judgment
On Tower v AP Wireless
Page 2
Judge Rodger QC:
Introduction
1. This is the Court’s judgment following the trial of an unopposed claim under the Landlord
and Tenant Act 1954.
2. The claimant, On Tower UK Ltd, applies for the renewal under Part II of the 1954 Act of a
lease of a telecommunications mast site located at New Zealand Farm in the village of
Aberford near Leeds. On Tower is the tenant under the lease which was originally granted
in 1998 for a term of 20 years and which has been continued since its contractual expiry in
December 1997 by the 1954 Act. The defendant, AP Wireless (II) UK Ltd (APW), is its
landlord, having been granted a concurrent or overriding lease of the site by the original
landlord in 2014.
3. On Tower’s tenancy is a “subsisting agreement” within the meaning of Schedule 2 of The
Digital Economy Act 2017. On renewal under the 1954 Act, the new tenancy will be a
code agreement to which the Electronic Communications Code (Schedule 3 to the
Communications Act 2003, introduced by The Digital Economy Act 2017) will apply.
4. There is no disagreement between the parties over the principle that the claimant should be
granted a new lease, but they remain in dispute over a small number of non-financial terms,
and over the rent to be paid.
5. On Tower is part of a group of companies which jointly comprise Europe’s largest operator
of wireless electronic communications infrastructure with over 100,000 operational sites,
including over 9,000 in the United Kingdom. It is a neutral host which makes its
infrastructure available to providers of electronic communications. As an infrastructure
provider it exercises functions under the Code and is regulated by Ofcom.
6. APW is a property investment company. Its business involves the acquisition of leasehold
or freehold interests in existing telecommunications sites entitling it to receive the future
rent payable by the relevant operator. APW is On Tower’s landlord at over 360 sites
across the UK.
7. I was informed that there are 134 sites at which On Tower is entitled to a new lease from
APW under the 1954 Act. Shortly after the hearing in this case was completed the Upper
Tribunal gave a decision in relation to three sites occupied by On Tower where APW was
also its landlord (On Tower UK Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152 (LC),
which I will refer to as Audley House). Each was a ground level site in an industrial
location, and each was occupied under an agreement already governed by the Code so that
renewal was sought pursuant to Part 5 of the Code. This case is different in that the
renewal is claimed under the 1954 Act and the site is in a rural location. It is hoped that
the two decisions will resolve matters of principle and enable the parties to complete other
renewals by negotiation.
8. The parties agreed that the Court should have the assistance of an assessor who was a
chartered surveyor and a member of the Upper Tribunal, Lands Chamber, with experience
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