Landowners with phone masts of their land often ask about network operators trying to impose new, less favorable lease terms, or whether and how the masts can be removed. The Electronic Communications Code allows network operators to seek better terms, usually resulting in significantly lower rent payments.
In the recent case of Vodafone Limited v Icon Tower Infrastructure Limited, AP Wireless II (UK) Limited, the Upper Tribunal (Lands Chamber) in England & Wales was called upon to adjudicate on several complex issues surrounding the renewal and termination of a code agreement under the Electronic Communications Code. This case revolved around the Vodafone Site, a mobile communications location situated at Steppes Hill Farm, Kent. This decision has significant implications for landowners, especially with regards to the redevelopment defence and is likely to be followed in Scotland. Background
Vodafone sought the renewal of a code agreement originally established in 2003. This agreement granted Vodafone rights to use a site owned initially by William and Patricia Buck and later transferred to AP Wireless II (UK) Limited (APW), who subsequently transferred it to Icon Tower Infrastructure Limited (Icon).
The 2003 Agreement expired in 2018 but was continued under the transitional provisions of the Digital Economy Act 2017. Disputes arose when Icon, now the owner of the Vodafone Site, served termination notices on Vodafone, citing three grounds under Paragraph 31(4) of the Code. These grounds were substantial breaches by Vodafone, an intention to redevelop the site, and a claim that Vodafone was not entitled to a new code agreement.
Key Issues and Tribunal's Findings
Alleged Breaches by Vodafone
Icon argued that Vodafone had shared its rights under the 2003 Agreement with Cornerstone Telecommunications Infrastructure Limited (CTIL) without consent, breaching the Alienation Clause. However, the Tribunal found that CTIL operated as Vodafone's agent, not independently. Therefore, no breach occurred.
Intention to Redevelop
Icon claimed an intention to redevelop the site by constructing a new tower and removing existing masts. The Tribunal determined that while some works constituted redevelopment, the removal of the masts in isolation did not. Moreover, the tribunal concluded that the works already undertaken or proposed did not constitute a coherent redevelopment plan. That was notwithstanding the fact that the tribunal did state that the removal of the masts was required by the planning permission.
Public Benefit and Prejudice Test
The Tribunal examined whether Vodafone's application for a new code agreement met the public benefit test under Paragraph 21. They concluded that the public benefit, including ensuring Vodafone's continued service at regulated Code rents, outweighed any prejudice to Icon.
Planning Issues
Central to the case were the planning conditions associated with the Prior Approval granted for the new tower's construction. The Tribunal found that the removal of existing masts was a condition of the Prior Approval, posing a high risk of enforcement action if not complied with.
Implications
This decision underscores the stringent requirements for terminating code agreements under the Electronic Communications Code. It highlights the importance of a genuine and independent intention to redevelop and the necessity for any claimed breaches to be substantial and proven.
Additionally, the case illustrates the Tribunal's approach to balancing public benefit with private prejudice, emphasising the legislative intent to facilitate access to high-quality electronic communications while protecting operators from excessive costs.
Conclusion
The case reiterates the robust protections afforded to telecommunications operators under the Code. It will serve as a crucial reference for future disputes involving code agreements, redevelopment intentions, and the balancing of public and private interests in the telecommunications sector. Unless successfully appealed, as the industry evolves, this case will likely be referred to in many cases going forward regarding electronic communications infrastructure.
Thorntons’ Dispute Resolution team work closely with the Land and Rural Business Team when acting for landowners against network operators in relation the network operators’ attempts to impose new lease terms. If you are a landowner and need any advice on the options available to you surrounding a telecoms mast on your land, please get in touch with Anne Miller or Iain Buchan on 03330 430350 and they can take matters forward with input from Robin Dunlop and Lesley Mearns in the Land and Rural Business Team. With knowledge across both specialism we can ensure a joined up approach when dealing with telecoms whether in dispute or implementing agreements with operators.
