Michael Upton

The ‘new’ Electronic Communications Code came into force at the end of 2017. It is a schedule to the Communications Act 2003. It governs telecoms masts and other ‘electronic communications apparatus’: specifically, relations between their operators and the owners or tenants of the land or buildings on which the apparatus sits. ‘Operators’ include providers of infrastructure such as masts, including Icon Tower Infrastructure. 

The recent judgment that we are considering arose from the fact that Icon own the sites of two masts in a field at Steppes Hill Farm, at Stockbury in Kent. It had put up a new mast on one of the sites, with a view to letting space on it for apparatus to serve purposes hitherto served by apparatus on the other mast. By virtue of the Code, masts do not accede to heritage. The other mast belonged to Vodafone and was in place under an existing agreement binding Icon as the landlord. Icon wished to terminate the agreement with Vodafone.

Para. 31 of the Code entitled Icon to terminate on the ground of “substantial breaches” of the agreement by Vodafone, or equally on the ground 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.” A third ground was also argued which we pass over here.

Vodafone were said have breached a non-alienation clause in the agreement. In fact, a third party, Cornerstone Telecommunications Infrastructure Ltd (CTIL) had been using the apparatus on the site. The tribunal held the agreement between Vodafone and CTIL to genuinely render CTIL merely an agent acting for the purposes of Vodafone as its principal, and hence not as acting for the purposes of CTIL’s own business. The allegation of breach of contract failed.

Icon’s re-development argument was also rejected. The grounds on which the Code provides for agreements to be terminated are fairly narrowly defined, to the benefit of operators. Likewise the grounds on which land-owners can oppose operators’ applications for rights are narrowly defined. In both cases, a plea by the land-owner that Code rights would prejudice intended re-development looks on the face of the Code to be one of the stronger cards that he can play. The Steppes Hill judgment is the most detailed consideration of the plea since EE Ltd v Chichester, [2019] UKUT 164. What the tribunal said may therefore be of wider interest. 

Nine points emerge:

1. “There are two parts to the test … The first part of the test is subjective. The site provider has to prove a firm and settled intention to carry out the relevant work of redevelopment, which is not likely to be changed. The second part of the test is objective. The site provider has to prove a reasonable prospect of being able to bring about the relevant redevelopment by their own act or volition.” – para. 279.
2. Where the question arises of whether the intention is being asserted purely as a device to negate the telecoms operator’s rights, “The acid test is whether the landlord would intend to do the same works if the tenant left voluntarily.” – paras. 321 & 329-330.
3. Whether the land-owner has the relevant intention to re-develop is to be tested as at the date of the hearing – paras. 232 & 282.
4. Proof of intention of a corporate land-owner may be found in a board resolution, but may also be inferred from the evidence generally, including the land-owner’s commercial objectives and what makes commercial sense – para. 308.
5. It can suffice for the land-owner to intend to re-develop land which has “some degree of geographical proximity” to the telecoms site – para. 243.
6. “Redevelop”, said the tribunal, “is a broad expression, capable of including a wide variety of works, provided that they can fairly be described as redevelopment. Equally, redevelopment implies some kind of change in the land which is the subject of the redevelopment, so that what was there before is replaced by something new.” – para. 256.
7. The intention must be “to commence the relevant work within a reasonable time of the [existing] code agreement coming to an end”, so it is not “open to the site provider to allege an intention to carry out the relevant work at any point in the future, however distant from the termination of the code agreement.” – paras. 276-7.
8. The test is “to be construed sensibly, so as to hold a fair balance between landlord and tenant. It is not … to be construed so as to create a series of artificial hoops through which the landlord must jump before he must satisfy the necessary intention.” – paras. 233-4.
9. The test is a statutory rule; it is not a matter which gives the tribunal a discretion – para. 334.

We can conclude by standing back a bit.

The issue was which of two masts in a Kentish field should be used for radio-telephony. The case was heard over seven days. Three preliminary issues were determined. The Upper Tribunal’s judgment runs to nearly 59,000 words over 98 pages. 

It is hard to imagine that such a case represents a profitable use of capital, unless of course we factor in the incalculable benefit of litigating pour décourager les autres. Happy, shall we say, the land that has such fat to burn?