Key points
• Similar principles apply to both the 1954 Act and the Code
• Redevelopment under the Code requires demolition and construction
• It is an impossible concept to intend to do something which has already happened
In Vodafone Ltd v Icon Tower Infrastructure Ltd and another [2025] UKUT 00058 LC the Upper Tribunal (Lands Chamber) has considered in detail grounds of opposition to a renewal agreement under section 31(4) of the Electronic Communication Code highlighting the similarities – and the differences – with section 30(1)(f) of the Landlord and Tenant Act 1954.
Background
The case concerned a mobile communications site in an agricultural field at Steppes Hill Farm, near Sittingbourne, Kent owned by Icon. Vodafone occupied the site under a 2003 agreement subject to the Code, which meant that it was continued after its contractual expiration date and the termination, modification and renewal provisions contained in Part 5 of the Code applied.
Icon had obtained planning approval to install a 25m tower on land 160m from the Vodafone site to replace two existing masts – the Vodafone mast and another belonging to MBNL, also in the same field – and to consolidate its equipment on the new tower. The tower had been installed but removal of the existing masts and consolidation of the equipment had yet to be achieved.
Grounds of opposition
Vodafone sought renewal of the 2003 agreement. Icon sought its termination on various grounds under paragraph 31(4) of the Code: (a) that the agreement ought to come to an end as a result of substantial breaches by the operator of its obligations under the agreement;
(c) that Icon intended to redevelop all or part of the land to which the code agreement relates, or any neighbouring land, and could not reasonably do so unless the code agreement comes to an end; and (d) that Vodafone was not entitled to a code agreement because the test under paragraph 21 for the imposition of a renewal agreement on Icon – that any prejudice to Icon was capable of being adequately compensated by money and was outweighed by the public benefit in making the order – was not met. The tribunal considered the grounds, as preliminary issues to the renewal/termination of the agreement.
Breaches
In 2012 Vodafone had entered into network and site sharing arrangements with Telefonica UK Limited, and formed a joint venture company, Cornerstone Telecommunications Infrastructure Limited, to take over and carry on its telecoms site management business. A variation to the 2003 agreement permitted Vodafone to share the site and accompanying rights with Telefonica.
The tribunal determined that the intention behind these arrangements was that CTIL should act as Vodafone’s agent precisely so as not to breach the alienation provisions in the 2003 agreement and this had been achieved.
Redevelopment
The tribunal analysed the planning issues and concluded that the planning approval required removal of the two existing masts to outweigh the harm of a 25m mast in an area of outstanding natural beauty. There was a high risk that the local planning authority would take enforcement action for non-compliance.
Paragraph 31(4)(c) derived in part from section 30(1)(f) of the Landlord and Tenant Act 1954 and, while the Code extends to “neighbouring land”, the core idea is the same. The test of what is neighbouring land is one of geographical proximity not legal relationship. The field surrounding the Vodafone site was clearly neighbouring land, as were the two enclaves within it – the new site and the MBNL site.
The key question was whether the proposed works constituted redevelopment of land. The scope of paragraph (f) is wide – “the intention to demolish or reconstruct the premises or carry out substantial work of construction”. Paragraph (c) refers to redevelopment, which implies a change in the land so that what is there is replaced by something new. Consequently, something more than mere demolition work is required.
The only works to take place on the Vodafone site were removal of the mast and infrastructure. The remaining works were to the new site and the MBNL site. The tribunal concluded that the proposed works – on the new site and the Vodafone site – were capable of being considered together.
Merely removing the masts did not constitute redevelopment, although removing a mast and replacing it with another would. What’s more, there was no relationship between the removal of the mast on the Vodafone site and the works on the new site which would have enabled removal to be treated as part of an overall scheme of development: the only link between the two was the planning link, which was insufficient.
Even if that relationship had existed, Icon could not intend to do works which it had already done. The test of intention under paragraph (c) is the same as under paragraph (f). Icon had to prove both a firm and settled intention to carry out the relevant work of redevelopment and a reasonable prospect of being able to bring it about: Cunliffe v Goodman [1950] 2 KB 237. An intention to do something requires the relevant thing to be done in the future.
The paragraph 21 test
The tribunal was satisfied that the relevant test was met. On a worst-case scenario, Icon was looking as the loss of its investment in the new site which could be adequately compensated in money. It would suffer no reputational loss. Additionally, there was a public benefit in Vodafone paying a Code rent for the site as opposed to a commercial rent if forced to migrate to the new tower. Icon had failed to establish a ground of opposition: Vodafone was entitled to a renewal agreement.
Louise Clark is a property law consultant
