The Electronic Communications Code in schedule 3A of the Communications Act 2003 should be interpreted as treating the persons entitled to the benefit and burden of an agreement – both as operator and site provider – as parties to the agreement whether or not they are the original parties to the agreement or their successors in title.
The Court of Appeal has allowed an appeal from the decision of the Upper Tribunal (Lands Chamber) concerning the treatment of concurrent lessees in Vodafone v Potting Shed Bar and Gardens Ltd (formerly known as Gencorp (No 7) Ltd) and another [2023] EWCA Civ 825; [2023] PLSCS 123 in a decision which gives effect to the intentions of the regime.
The case concerned a site in Bingley, Yorkshire, leased in 2003 by the then freeholder to Vodafone for a term expiring in 2018. In 2018, a subsequent freeholder granted a concurrent lease to AP Wireless II (UK) Ltd for a term expiring in 2058. So APW became entitled to the reversion on Vodafone’s lease and to payment of rent by Vodafone. Gencorp became freeholder in 2020.
Vodafone applied to the UT to renew its lease and obtain new code rights, arguing that only Gencorp could grant it new code rights which would bind APW. APW argued that as the concurrent lessee only it was capable of conferring new rights and it should be treated as a party to the agreement with an order binding Gencorp.
The UT rejected APWs submissions. APW was neither a party to the code agreement with Vodafone nor a successor in title to that party and so was not a party to the agreement under paragraph 10(3) for the purposes of the termination and modification provisions in part 5 of the code. A gap in the legislation prevented APW from taking steps to bring the agreement to an end. Vodafone could, however, seek renewal of the agreement under part 4, after lease end.
APW appealed arguing that because a concurrent lessee had the right to rent under the lease and the benefit of the tenant covenants, it was in effect a party to the agreement which bound it whether it was treated as a successor in title or not. The Court of Appeal agreed. The correct approach was to work out how the regime was intended to operate, which was that the persons currently entitled to the benefit and burden of the agreement as operator and site provider are parties to the agreement. Paragraph 10(3) was not exhaustive on this issue.
Louise Clark is a property law consultant and mediator
