LC-2023-000815 - [2024] UKUT 263 (LC)

Fecha: 01-Ene-2024

Heading

Neutral Citation Number: [2024] UKUT 263 (LC)

Case Number: LC-2023-000815

IN THE UPPER TRIBUNAL (LANDS CHAMBER)

AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)

First-tier Tribunal Reference: LC-2023-000322 and 000348

9^th September 2024

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

ELECTRONIC COMMUNICATIONS CODE – CODE AGREEMENTS – LEASE/LICENCE DISPUTE - sites in open country – agreements entered into granting code operator the right to install and operate telecommunications equipment – whether agreements took effect as leases or licences – whether one of the agreements was granted for a term which was capable of being a term certain – whether either or both of the agreements granted exclusive possession of a defined area of land to the code operator – decision that both agreements did grant exclusive possession of a defined area of land – decision that only one of the agreements took effect as a lease because, in the case of the other agreement, the agreement was not granted for a term which was capable of being a term certain and took effect only as a licence – appeal allowed in part

BETWEEN:

AP WIRELESS II (UK) LIMITED

Appellant

-and-

ON TOWER UK LIMITED

Respondent

Land lying to the West of Burlington Gardens,

Hullbridge, Hockley, SS5 6BD and

Land at Meadowley and Fields Farm,

150A and 150B, Congleton Road, Sandbach

The President, Mr Justice Edwin Johnson

24^th May 2024

David Holland KC and Wayne Clark, instructed by Freeths LLP, for the Appellant

Oliver Radley-Gardner KC, instructed by Gowling WLG (UK) LLP, for the Respondent

The following cases are referred to in this decision:

Street v Mountford [1985] AC 809

EE Limited and Hutchison 3G UK Limited v London Borough of Islington [2019] UKUT 53 (LC)

Clear Channel UK v Manchester City Council [2005] EWCA 1304

Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513, at page 522:

Global 100 Ltd v Laleva [2021] EWCA Civ 1835 [2022] 1 WLR 1046

Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52 [2012] 1 AC 955, at [107]:

Rainy Sky SA v Kookmin Bank [2011] UKSC 50 [2011] 1 WLR 2900, at [21]:

Vodafone Ltd v Potting Shed Bar and Gardens Ltd [2023] EWCA Civ 825

Smith v Chadwick (1882) 20 ChD 2 27

Sattar v Sattar [2009] EWHC 289 (Ch)

JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419

Powell v McFarlane (1977) 38 P&CR 452

Seddon v Smith (1877) 36 LT 168

EE Ltd v Edelwind [2020] UKUT 0272 (LC)

AG Securities v Vaughan [1990] 1 AC 417

Leadenhall Residential 2 Limited v Stirling [2001] EWCA Civ 1011 [2002] 1 WLR 499

Manchester Airport Plc v Dutton [2000] QB 133

Gilpin v Legg [2017] EWHC 3220 (Ch) [2018] L&TR 6

EE Limited and Hutchison 3G Limited v London Borough of Islington [2019] UKUT 0053 (LC)

Dresden Estates Ltd v Collinson (1988) 55 P&CR 47

PG Lewins Limited v Hutchison 3G UK Limited and EE Limited (County Court at Bristol – 9^th March 2018)

Burana v Leeds Teaching Hospitals NHS Trust [2017] EWCA Civ 1980 [2018] 1 WLR 1965

Davies v Jones [2009] EWCA Civ 1164 [2010] 1 P&CR 22

On Tower UK Limited v AP Wireless II (UK) Limited (LC-2023-000322, 323, 332, 348 and 365)

Leeds City Council v Broadley [2016] EWCA Civ 1213 [2017] 1 WLR 738

Ashburn Anstalt v Arnold [1989] Ch 1

Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386

Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1

Index

Introduction	Paragraphs 1-9
Preliminary matters	Paragraphs 10-12
The 1997 Agreement	Paragraphs 13-29
Identification of the Sandbach Site	Paragraphs 30-36
The 2002 Agreement	Paragraphs 37-47
Identification of the Lubbards Site	Paragraphs 48-55
The Decision	Paragraphs 56-64
The grounds of the Appeal	Paragraphs 65-71
The respondent’s notice	Paragraph 72
The lease/licence dispute – the correct approach	Paragraphs 73-94
What is exclusive possession?	Paragraphs 95-101
Analysis of the Appeal – overall approach	Paragraphs 102-104
Analysis of the Appeal – the arguments in paragraph 7 of the Grounds of Appeal	Paragraphs 105-127
Analysis of the Appeal – the arguments in paragraphs 8-10 of the Grounds of Appeal	Paragraphs 128-263
(i) Paragraphs 8-10 of the Grounds of Appeal - methodology	Paragraphs 128-132
(ii) Paragraphs 8-10 of the Grounds of Appeal – Clause B and the plans attached to the Agreements	Paragraphs 133-148
(iii) Paragraphs 8-10 of the Grounds of Appeal – the fencing obligations	Paragraphs 149-154
(iv) Paragraphs 8-10 of the Grounds of Appeal – rights of access	Paragraphs 155-158
(v) Paragraphs 8-10 of the Grounds of Appeal – the absence of rights to share use of the Sites	Paragraphs 159-161
(vi) Paragraphs 8-10 of the Grounds of Appeal - chattels	Paragraphs 162-175
(vii) Paragraphs 8-10 of the Grounds of Appeal – rights of relocation and redevelopment	Paragraphs 176-191
(viii) Paragraphs 8-10 of the Grounds of Appeal – successors in title	Paragraphs 192-231
(ix) Paragraphs 8-10 of the Grounds of Appeal – the absence of deeds	Paragraphs 232-236
(x) Paragraphs 8-10 of the Grounds of Appeal – the absence of reference to the 1954 Act	Paragraphs 237-240
(xi) Paragraphs 8-10 of the Grounds of Appeal – other provisions of the Agreements	Paragraphs 241-247
(xii) Paragraphs 8-10 of the Grounds of Appeal – the 2000 Supplemental Agreement	Paragraphs 248-251
(xiii) Paragraphs 8-10 of the Grounds of Appeal – the overall analysis	Paragraphs 252-260
(xiv) Paragraphs 8-10 of the Grounds of Appeal – the outcome of the overall analysis	Paragraphs 261-263
Analysis – the Term Issue	Paragraphs 264-312
The outcome of the Appeal	Paragraphs 313-316
Postscript	Paragraphs 317-318