Sharing is (not?) caring: telecoms operators win wider powers to share apparatus

Cornerstone Telecommunications Infrastructure Limited v Fothringham LTS/ECC/2020/007 was one of the earliest cases to consider sharing in detail, before the Lands Tribunal for Scotland.  It concerned a mast site in the Murthly Estate in Perthshire.

CTIL is a joint venture set up by Vodafone and O2 to provide infrastructure for both companies to use.  It sought unlimited rights to share its Murthly Estate apparatus with third parties.  The landowner sought to constrain sharing to the paragraph 17 floor.

CTIL argued that limiting its sharing to the paragraph 17 floor would have "devastating consequences" for its business, and that it was for the landowner to show why it should be so limited.  The Tribunal disagreed on both counts.

The Tribunal held that it would need "pretty compelling evidence" to justify deviating from the paragraph 17 floor (this has since been disapproved in Dale Park).  In any case, it found none.  In particular, it found that CTIL could adequately share within the constraints of paragraph 17: 

"In this regard, we cannot help thinking that any prospect of difficulty, in the way of para 17 being used by the respondent to impede sharing or somehow thwart what the applicants wish to achieve in the way of sharing is more imagined than real. We say that because we imagine that the new mast once fitted with its active equipment will look much like the old and will have no greater adverse effect on the respondent’s enjoyment of his land. There ought not, therefore, to be any reason to apprehend that restricting sharing rights to those envisaged in para 17 is going to tie the applicants’ hands in some way which is at odds with the sharing imperative."

The operator was therefore limited to sharing in line with the paragraph 17 floor.  This line of thinking did not hold for long and was not followed by the Upper Tribunal in London & Quadrant Housing.

CTIL v London & Quadrant Housing Trust [2020] UKUT 282 (LC) concerned a rooftop site on a block of flats in Peckham. 

CTIL argued that it would need to share with other operators (i.e. its owners, Vodafone and O2) and again sought unlimited sharing rights.  The landowner argued that unlimited sharing would be disruptive to the occupiers of the building, as it would increase footfall and works within the building.

The Tribunal accepted that an infrastructure provider would need to be able to share in order to make apparatus available to other operators as part of its business.  However, it also accepted that the burden to the occupier of a residential site may be high:

"We do not consider that unrestricted sharing of electronic communications apparatus on the roof of a large residential building is compatible with the direction in paragraph 23(5) to include terms appropriate for ensuring that the least possible loss and damage is caused to the occupiers of the building. We bear in mind that the more users of the apparatus there are, the more traffic there will be through the common parts of the building, the more checks L&Q will reasonably wish to make on the suitability of those working on its roof, and the more burdensome it will become to L&Q to comply with its own building safety obligations."

Although the Tribunal accepted that CTIL would need to share the apparatus with Vodafone and O2, it could not see a wider need for sharing.  The Tribunal therefore allowed CTIL to share with up to 2 other operators (even if this affected the appearance or increased the burden on the landowner), plus any other operators where it would have no such impact (the paragraph 17 minimum).

On Tower UK v J H & F W Green Limited [2020] UKUT 348 (LC) concerned a mast on a woodland site in the Dale Park Estate in the South Downs National Park.  On Tower is a neutral operator, which provides infrastructure to third party carriers looking for pre-made sites.  Its business relies on the ability to share with many third parties.  On Tower therefore sought unlimited sharing rights.

The landowner opposed unlimited sharing, and cited concerns relating to levels of traffic and noise, security, the appearance of the apparatus, and disturbance to the amenity of the park and its tenants.

The Tribunal was not persuaded by the landowner's concerns.  It found that the site was already shared without consequence (so much so that the landowner wasn't aware that it was shared), and that planning laws and the other terms of the lease would be sufficient to protect against undue impact caused by sharing.  

The Tribunal distinguished London & Quadrant Housing on two fronts.  On Tower needed to share with many third parties (which CTIL did not), and the impact of extra traffic on a rural road was much less than the impact of extra footfall within a residential tower block.  

"However genuine the respondent's concerns, they are not really reflected in reality nor founded on evidence. The agreement, and planning law, provide the protection that the respondent needs from the levels of nuisance and disturbance that can realistically be anticipated. […]   In London and Quadrant, by contrast, on a rooftop site, extended sharing rights would have caused obvious difficulties as a result of the increased footfall within the building; on a site in woodland that traffic does not have the same effect."

The Tribunal therefore allowed unlimited sharing.

On Tower v McLean [2024] LTS 26 was another decision of the Lands Tribunal for Scotland.  It concerned a mast on a livestock farm run by the McLeans.  

As in Dale Park, On Tower sought unlimited rights to share.  However, On Tower also sought the right to share with operators who were not licensed by Ofcom.  On Tower argued that sharing with unlicensed operators would give the public access to better services and more choice; that the landowner would be protected by the terms of the agreement; and that the tower would have inherent limitations which would in practice limit the amount of sharing that could be done.

The landowners raised concerns about biosecurity and the need to control who came onto the site.  The Tribunal was not persuaded by the landowners' biosecurity concerns.  It instead decided that low level concerns could be reflected in the level of rent, and exceptional biosecurity risks by compensation in the future.  

"We think the hypothetical landlord would have justified concerns – albeit fairly low level concerns - as to the safety of visitors and his stock, when visits to the site are made. […] These sort of anxieties do not amount to the type of exceptional biosecurity risks referred to by the respondents. We think the optimum course is not to take account of exceptional biosecurity risks in fixing consideration, but regard this as a matter for compensation in the future should it arise."

The operator was therefore allowed unlimited sharing rights with licensed and unlicensed operators.

Cellnex Connectivity Solutions Ltd v Secretary of State for Housing Communities and Local Government BIR/00CN/EIA/2025/0603 concerned a site on the roof of Croydon Crown Court.

Cellnex is a neutral operator which provides infrastructure to third parties.  It sought unlimited sharing rights with licensed and unlicensed operators, but accepted that it would probably only share with, at most, 7 operators.

The landowner is, functionally, HM Courts and Tribunal Service.  It opposed all sharing with unlicensed operators and wanted to limit sharing to no more than 3 licensed operators.  Its concerns related to security of the court estate, and the administrative burden for court staff of having to manage extra third parties attending the site.

The Tribunal did not accept these concerns.  It held that Cellnex was used to dealing with sensitive sites and that court staff would get used to dealing with extra operators on site.  The Tribunal instead pointed to government policy which encouraged both the use of public buildings and the need to share apparatus.   

"Government Guidance makes it clear that public buildings should be made available to telecoms providers. The administrative burden to FM of government estate in arranging and facilitating HMCTS contractors (e.g. OCS security) to attend is unlikely to be significant once the initial build is completed and ways of working become established. […] I attach significant weight to the business needs of the operator and the underlying statutory purpose of the Code [and] well established Government policy seeking to encourage sharing."

The Tribunal did however require the operator to notify the landowner of the names of those who would be sharing the site, and gave the landowner the right to veto any sharer on grounds of national security or administration of justice.