The recent Upper Tribunal (Lands Chamber) decision in Vodafone Limited v Icon Tower Infrastructure Limited and AP Wireless II (UK) Limited (“the Steppes Hill case”) has clarified some of the issues facing landowners and operators in exercising their rights under the Electronic Communications Code (“ECC”). Whilst an English decision, the detailed reasoning given by the Tribunal is likely to influence similar Scottish cases.
Background
The case centred on a mobile phone site located at Steppes Hill Farm in Kent. In terms of an existing agreement, Vodafone enjoyed rights to occupy the site and, by the time of the proceedings, Icon Tower Infrastructure Limited had become owners of the site.
The initial agreement was due to expire in 2018 but continued beyond its contractual expiry date by virtue of the transitional provisions of the “new” Electronic Communications Code contained in the Digital Economy Act 2017. Vodafone sought to renew the agreement under the ECC whilst Icon Tower aimed to terminate the agreement in exercise of their rights under paragraph 31 of the ECC. Icon cited three grounds for termination of the agreement, namely; substantial breaches of the existing agreement by Vodafone, redevelopment intentions by Icon Tower and a failure by Vodafone to meet the test under paragraph 21 of the ECC.
Substantial breach
The first ground relied upon by Icon Tower was that Vodafone had breached the non-alienation clause of the existing agreement. A third party, Cornerstone Telecommunications Infrastructure Limited (“CTIL”) had been using apparatus on the site.
The Tribunal considered both the key contractual agreements between Vodafone and CTIL as well as the factual background to the site and found that the agreement between Vodafone and CTIL rendered CTIL as an agent acting for the purposes of Vodafone, rather than a principal. Accordingly, the Tribunal established that there was no breach of contract and this allegation by Icon failed.
Public benefit
In terms of paragraph 21 of the ECC, the Tribunal are obliged to consider whether the prejudice of imposing an agreement on a landowner under the ECC can be adequately compensated by money and whether the public benefit outweighs the prejudice to the landowner.
The Tribunal concluded that any prejudice to Icon Tower caused by Vodafone remaining in occupation of the site could be compensated by money and that the public benefit of Vodafone’s site outweighed any potential prejudice to Icon Tower. Accordingly, the second ground relied upon by Icon Tower also failed.
Redevelopment
The third, and most contentious, ground put forward by Icon Tower was that removal of the existing mast was necessary for redevelopment as Icon Tower had already built a new mast in the vicinity of the existing mast. The planning approval which Icon Tower had received to develop the new mast contained a planning condition requiring the removal of the existing mast and the Tribunal acknowledged that non-compliance with this condition could trigger enforcement action against the landowner.
The Tribunal considered this ground in significant detail, but there are two key takeaways from the Tribunal’s detailed decision which will be notable to operators and site providers.
Firstly, the Tribunal focussed on the wording in paragraph 31 of the ECC which contains a provision that the site provider “intends” to redevelop. As Icon Tower had already completed the work to develop the new mast, the Tribunal held that they were unable to argue an “intent” to redevelop the land.
Secondly, the Tribunal also focussed on the requirement that the redevelopment relates to “land”. Deconstructing and removing the existing masts were not considered to relate to “land” and accordingly the works required by the planning condition were not relevant to Icon’s arguments in terms of paragraph 31 of the ECC.
Whilst these clarifications are likely to be welcomed by operators, there was also a helpful takeaway for site providers in the Tribunal’s consideration of “neighbouring land” in the context of a termination ground under paragraph 31. The Tribunal confirmed that whilst there was an implied geographical proximity test, neighbouring land was not limited to adjacent occupiers and could extend more widely and could include sites up to 160 metres away and the surrounding field. The Tribunal did, however, emphasise that the definition of “neighbouring land” would still be unique to individual cases.
Conclusion
The Steppes Hill case is likely to be welcomed by ECC operators as a number of the points clarified by the decision reaffirm the protections offered by the ECC to operators. The decision does, however, offer very detailed commentary on three of the four potential termination grounds under the ECC and will no doubt be of benefit to operators and site providers particularly where disputes relate to breaches or redevelopment. Brodies will continue to review the potential application of the decision to Scottish sites.
If you are an operator, infrastructure provider or landowner dealing with agreements under the ECC, or you have any concerns or questions about the impact this decision may have on you or your business, please do not hesitate to get in touch with our Telecommunications lawyers or your usual Brodies' contact.
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