In Vodafone Ltd v Gencomp (No 7) Ltd and another [2022] UKUT 223 (LC) the Upper Tribunal (Lands Chamber) has considered the procedure for renewing rights under the Electronic Communications Code contained in Schedule 3A to the Communications Act 2003 where a concurrent lease of the reversion to a Code agreement had been granted.
Gencomp was the freehold owner of the Old Fire Station, a bar and restaurant in Bingley, West Yorkshire. In 2003, a former freehold owner granted Vodafone a lease of parts of the tower for its electronic communication apparatus. Vodafone sought to renew its rights under the Code for a further 10 years. In June 2018, the then freeholder granted a concurrent lease of parts of the tower to APW, subject to Vodafone’s lease, for a term expiring in 2058. APW therefore became Vodafone’s immediate landlord. Neither respondent objected to the renewal of Vodafone’s rights but disagreed on how it was to be achieved. Vodafone argued that only Gencomp, as freeholder, could grant it new rights under the Code, with APW being bound by them. APW argued that only it could grant new rights to the claimant which would be binding on Gencomp.
Paragraph 10 of the Code identifies three categories of persons who will be bound by a Code right apart from the occupier who conferred that right: successors in title to the occupier’s interest; those who have an interest, derived from the occupier’s interest, created after the Code right was conferred; and anyone else in occupation whose right was granted by the occupier, their successor or the holder of a derivative interest. However, only a successor in title is to be treated as a party to the agreement.
Code rights can only be conferred by occupiers of land. APW, as occupier of the tower, was in a position to enter into a voluntary agreement with Vodafone under paragraph 9 of the Code. It also had sufficient rights under the concurrent lease to enable it to grant easements equivalent to those enjoyed by Vodafone under the 2003 lease. Such an agreement would operate as a surrender of the 2003 lease by operation of law and the rights conferred by APW on Vodafone would bind Gencomp because they had already been granted under the concurrent lease. Gencomp, by contrast, was not the occupier of the tower and so not in a position to confer new code rights on Vodafone which were not subject to the prior rights of APW under the concurrent lease.
The Code provisions which deal with the Tribunal’s power to terminate or modify agreements are confined to operators or site providers who are a “party to a code agreement”. The Code does not address the issue which arises on the grant of a concurrent lease. The Tribunal had jurisdiction to impose an agreement on Vodafone and APW under paragraph 20 of the Code and that such an agreement bound Gencomp. It could also order that such an agreement was in a tripartite format. However, it could not make an order conferring a new agreement under paragraph 34.
Louise Clark is a property law consultant and mediator
