A lawful assignee of the benefit of a licence agreement made before 28 December 2017 is to be treated as a party to that code agreement and able to seek a new agreement under Part 5 of the Electronic Communications Code.
The Upper Tribunal (Lands Chamber) has determined this issue in AP Wireless II (UK) Ltd v On Tower UK Ltd [2024] UKUT 429 (LC). Since 28 December 2017 paragraph 16 of the code makes the burden of all new code agreements pass on assignment and releases the original party.
The case concerned three sites where APW was the site provider and On Tower was the assignee of a licence agreement but had not agreed with the site provider or its predecessor to perform the obligations of the licensee in the code agreement.
Under paragraph 10 of the Code, only an operator on whom a code right is conferred, a person with an interest in land who agrees to be bound by code rights or their successors in title are treated as a party to the agreement and so able to give or receive notices under Part 5 and seek relief from the court.
The First-tier Tribunal decided in all three cases – in line with the principle established in Vodafone Ltd v Potting Shed Bar and Gardens Ltd (formerly known as Gencomp (No 7) Ltd) [2023] EWCA Civ 825 – that On Tower had wholly replaced the assignor as the operator of each site and since it was entitled as assignee to the benefit of the agreements it could invoke Part 5.
While disagreeing with the FTT’s reasoning on Gencomp the tribunal concluded that an operator who is a party to a code agreement was an operator who was a lawful assignee of the benefit of a licence agreement, occupying the site as operator in place of the assignor, and having assumed primary responsibility for complying with the terms of the licence agreement – including payment of the licence fee – whether or not a deed of covenant had been made with the site provider.
Where the assignment was lawful there was no difference – for Part 5 purposes – between an assignee’s covenant to perform the obligations in the agreement with the site provider or the assignor. In the case of a bare assignment where the assignee covenanted with no one, for code purposes, the operator who is a party to the agreement would remain the assignor.
On Tower having, in each case, covenanted with the assignor to perform the obligations under the licence agreement, was entitled to invoke Part 5.
Louise Clark is a property law consultant and mediator
