Gravesham Borough Council v On Tower UK Limited
[2024] UKUT 151 (LC)
Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor
14 July 2023
[2023] EWCA Civ 825
Court of Appeal
Vodafone had an old agreement to use a tower for phone signals. A new company got a lease on the same tower. Vodafone tried to renew its agreement, but wasn't sure who to talk to. The court said the new company was part of the original agreement and Vodafone needed to negotiate with them directly, instead of going to court.
Key Facts
- •Vodafone Ltd (Vodafone) held a lease (the Lease) for a site in Bingley, expiring in 2018, granting code rights under the Electronic Communications Code (the Code).
- •AP Wireless II (UK) Ltd (APW) acquired a concurrent lease (the Concurrent Lease) of the same site in 2018, becoming entitled to the reversion of Vodafone's lease.
- •In 2019, Gencomp (No 7) Ltd (Gencomp) became the freeholder.
- •Vodafone sought to obtain new code rights under Part 5 of the Code after the Lease's expiry, but there was a dispute about the correct procedure and parties involved.
- •The Upper Tribunal (Lands Chamber) (UT) held that Part 4 of the Code applied, allowing Vodafone to obtain new rights against APW.
Legal Principles
The Electronic Communications Code (ECC) enables operators to acquire 'code rights' to install and keep electronic communications apparatus on land.
Schedule 3A, Communications Act 2003
A code right may only be conferred by agreement between the occupier and the operator; the operator is not considered the occupier even if in occupation.
ECC paragraph 9, Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18
Part 5 of the ECC governs termination and modification of code agreements, including continuation of code rights after contractual expiry.
ECC paragraphs 28-34
Part 4 of the ECC allows the court to impose agreements conferring code rights if agreement isn't reached.
ECC paragraphs 19-27
A concurrent lease grants the lessee the right to rents and profits and the benefit of covenants in the original lease; it does not transfer the lessor's title.
Decision at [57]-[58]
Outcomes
The appeal was allowed.
APW, as the concurrent lessee, was considered a 'party to the agreement' under Part 5 of the Code, despite not being the original grantor or successor in title. The court found that a literal interpretation of paragraph 10(3) would not allow the Code to work practically in cases of concurrent leases. The court favoured a purposive interpretation of the Code allowing the regime to function effectively. Therefore, Vodafone could not utilize Part 4 as initially proposed.
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