The telecoms case of Cellnex Connectivity Solutions Ltd v Secretary of State for Housing Communities and Local Government [2025] provides clarity as to balancing the security requirements of a site provider at a sensitive rooftop locations with the necessity of allowing operators to fulfil their statutory purpose and act in the public interest.
Cellnex Connectivity Solutions Limited (the operator) identified the rooftop of Croydon Crown Court as a suitable site for the installation of telecommunications apparatus to assist with the Brighton Mainline Programme. The Brighton Mainline Programme aims to establish an interconnected system of telecommunications infrastructure to provide seamless connectivity along the Brighton to London trainline.
The site provider was cooperative and did not oppose an agreement in principle; however, there were a number of terms of the Code Agreement which remained in dispute and so the operator applied to the First Tier Tribunal ("FTT") to impose interim code rights. These key terms in dispute included:
- The sharing rights of the operators;
- Demise and installation rights;
- Yielding up obligations; and
- Forfeiture provisions.
On 5 June 2025, the FTT imposed an agreement on the parties for the interim rights requested and provided the following clarification on the contested terms:
Sharing Rights
The site provider sought to limit sharing to a maximum of three code operators, on account of security concerns given that the site is occupied by Croydon Crown Court and to avoid undue administrative burdens on court staff which could take away from their primary role in maintaining the continuity of court services.
As Cellnex is a wholesale infrastructure provider (WIP) and neutral host, the operator argued that it required the ability to share with an unlimited number of both Code and non-Code operators in order to fulfil its statutory purpose.
The FTT held that sharing should be unlimited, subject to specific safeguards being in place due to the sensitive nature of the site, including (a) the notification of interest from a prospective sharer, (b) veto on national security/administration of justice grounds and (c) an obligation on the sharer to comply with tenant covenants contained in the lease.
Demise and Installation Rights
The operator sought the right to install or re-locate the telecommunications apparatus to any other unbuilt/vacant area on the rooftop, rather than to limit the equipment to the area demise in the code agreement. The operator argued that it would prevent them, or the sharers, from needing to apply under paragraph 20 of the Code for further rights to install further equipment in the future should the need arise, and therefore reduce the administrative burden and costs incurred. It was therefore determined that the operator may use vacant or unused areas of the rooftop, subject to the site provider's consent, which is not to be unreasonably withheld or delayed. It was, however, also determined that it would not be unreasonable for the site provider to refuse on grounds of national security, interference with the administration of justice or if they had a settled intention to redevelop.
Yielding Up Obligations
The site provider sought to impose an obligation on the operator to remove their apparatus at the end of the term and proposed a term requiring the decommissioning of the site and the removal of telecommunications apparatus within 6 months. The FTT refused the inclusion of these terms as it deemed that the provisions for the removal of apparatus at the end of the contractual term were already sufficient within Part 6 of the Code. The tribunal emphasised that there is "no need to duplicate statutory mechanism" with Code Agreements.
Termination and Forfeiture
The operator sought to include a forfeiture provision in the event of tenant breach, in order for them to have the ability to seek relief from forfeiture if necessary in due course. The site provider argued that this imposed a burden on them, as they cannot serve a notice to quit under paragraph 31 of the Code until after forfeiture has taken place and in practice would not be able to predict the forfeiture date in advance so would not know the termination date which could be specified in the paragraph 31 notice. The FTT required the forfeiture provision to be included in the code agreement imposed as it considered that it balanced the business certainty for the operator which was deemed to be in the public interest, whilst minimising loss or damage to the site provider who may bring a claim for damages or seek an injunction in the event that the operator is in breach.
This case demonstrates the FTT's desire to grant favourable terms to operators where it deems them necessary to allow operators to fulfil their statutory purpose and act in the public interest, whilst implementing minor safeguards in consideration of the site-specific requirements, such as the sensitive nature of this rooftop location. Ultimately, the case illustrates that the Code is balanced more favourably towards operators, rather than individual site providers.
It also highlights that the FTT does not see the benefit in including terms within an agreement which duplicate mechanisms imposed by statute.
