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

The first of the Agreements is an agreement in writing dated 11^th March 1997, entered into between a Mr Thornhill (“Mr Thornhill”), as owner of the site with which this agreement was concerned, and Orange Personal Communications Services Limited (“Orange”). The agreement (“the 1997 Agreement”) was signed by each party, but was not made by deed.

The 1997 Agreement bore the following heading:

“AGREEMENT FOR THE INSTALLATION OF PCN EQUIPMENT – GREENFIELD”

The 1997 Agreement was split into two parts. The first part contained the essential terms agreed between the parties, lettered A-E, although clause A may be said to be more akin to a recital. In terms of what the parties agreed, by clauses A-E, it is easiest simply to set out clauses A-E in full:

“A.

The Owner is entitled to a legal estate in the site described below (“the Site”) as identified in red on the attached plan:

GREENFIELD SITE AT FIELDS FARM, SANDBACH

B.

The Owner has agreed that Orange shall have the right at its own risk and expense:

(i)

to install operate maintain repair and renew PCN Equipment on the Site in connection with Orange’s PCN System,

(ii)

to run maintain repair and renew an electricity cable from the Owner’s electricity supply to the PCN Equipment or if required a mains electricity service from the boundary of the premises to the PCN Equipment,

(iii)

to run maintain repair and renew or permit any other Public Telecommunications Operator to run maintain repair or renew a communications cable from the PCN Equipment to the boundary of the Premises in such positions as shall be agreed between the parties,

(iv)

to obtain vehicular access at all times to and from the Site.

C.

Orange has agreed to pay for such rights a Tariff of £3,300 per annum exclusive of VAT payable in accordance with clause 3.1 of the attached terms and conditions.

D.

The Minimum Term is 10 years from the date shown above.

E.

This Agreement shall be subject to and shall incorporate the terms and conditions attached.”

It will be noted that the 1997 Agreement identified the site which was the subject of the 1997 Agreement as a greenfield site at Fields Farm, Sandbach. I will use the expression “the Sandbach Site” to refer to this land, that is to say “the Site”, as the Site was defined and identified in the 1997 Agreement. In its identification of the Sandbach Site, the 1997 Agreement made reference to an attached plan. The attached plan (“the 1997 Sandbach Plan”) has not been located.

The second part of the 1997 Agreement contained the terms and conditions referred to in clause E, which were divided into ten numbered clauses. I will need to come back to these clauses, in detail, later in this decision. There are two particular points which I should note at this stage.

First, clause 1 of these terms and conditions contained a list of defined expressions used in the 1997 Agreement. PCN Equipment was defined to mean “such aerials transceiver and switch equipment cabling power supply equipment and support structures including a mast or tower or any combination of such equipment necessary as is required by Orange for the operation of a PCN system,”. I will use the expression “the PCN Equipment” to mean the telecommunications equipment which Orange was granted the right to “install operate maintain repair and renew” by clause B(i) of the 1997 Agreement.

Second, it will be noted that clause D defined what was referred to as the Minimum Term as 10 years from 11^th March 1997. Clause 1 of the terms and conditions defined the Minimum Term by reference to clause D. Clause 2 of the terms and conditions then provided as follows, under the heading of “Term and Termination”:

“2.1

This Agreement shall come into effect on the date shown above and shall continue for no less than the Minimum Term. It may be terminated by either party giving to the other not less than 12 months’ notice in writing to expire at any time on or after the expiry of the Minimum Term.

2.2

Notwithstanding the provisions of clause 2.1 Orange may terminate this Agreement at any time on not less than 3 months prior written notice expiring on a Payment Day in the event of circumstances arising such that the Site is no longer suitable for the operation of PCN Equipment including (but not limited to) the erection of new buildings or environmental changes to the area in which the Site is located or the complete or partial destruction of the Site.

2.3

In the event that a redevelopment of the Site is to take place the Owner agrees to consult with Orange and agree to a suitable relocation of its PCN Equipment within the Premises. If a relocation is not possible then the Owner shall have the right to terminate this Agreement at any time upon giving not less than 12 months prior written notice to Orange.”

As can be seen, clause 2.1 made it clear that the term of 10 years was the minimum term. Assuming that the rights of earlier termination in clauses 2.2 and 2.3 were not operated, clause 2.1 provided that the 1997 Agreement was to continue for a minimum term of 10 years, and could then be terminated by either party giving to the other not less than 12 months’ notice in writing to expire at any time on or after the expiry of the Minimum Term (of ten years).

Clause 2.1 gave rise to an issue distinct to the 1997 Agreement. OT argued that, independent of its other arguments on the lease/licence dispute, the 1997 Agreement could not have taken effect as a lease because its term was uncertain or, putting the matter the other way round, because there was no term certain. I will refer to this separate issue, which generated a good deal of complex argument on the relevant case law, as “the Term Issue”.

The 1997 Agreement was supplemented by a further written agreement dated 2^nd November 2000 and entered into between Mr Thornhill and Orange. Again, this supplemental agreement (“the 2000 Supplemental Agreement”) was signed by each party, but was not made by deed. By clause 3.1 of the 2000 Supplemental Agreement the parties agreed that, with effect from the date of the 2000 Supplemental Agreement, the 1997 Agreement should be amended in accordance with the provisions set out in Schedule 1 to the 2000 Supplemental Agreement.

Schedule 1 to the 2000 Supplemental Agreement did three things. First, it substituted new plans of the Sandbach Site for the (now missing) 1997 Sandbach Plan. Second, it increased the amount of the “Tariff” payable under the 1997 Agreement. Third, Orange agreed to carry out a landscaping scheme, and maintain the same for a period of five years from the date of the 2000 Supplemental Agreement.

The plans which were attached to the 2000 Supplemental Agreement, which were collectively described as the “New Plan”, are available. I will refer to these plans as “the 2000 Sandbach Plans”.

The 2000 Sandbach Plans comprise three plans. One is an elevation plan, showing the telecom tower and other equipment on the Sandbach Site. One of the other two plans, which is dated October 2000, appears to be a landscaping plan of some kind and may have been connected in some way to the landscaping obligation which Orange undertook in the 2000 Supplemental Agreement. I will refer to this plan as “the Sandbach Landscaping Plan”. The final plan is described as a site plan. I assume that this plan (“the Sandbach Site Plan”) was intended to show the Sandbach Site, but the delineation of the boundaries of the Sandbach Site on the Sandbach Site Plan is not clear. Clause A in the 1997 Agreement described the Sandbach Site “as identified in red on the attached plan”. It is unclear whether this red edging was carried over into any of the 2000 Sandbach Plans. The Sandbach Site is defined in the 2000 Supplemental Agreement as “The land more particularly described as such in the Existing Agreement [the 1997 Agreement].”.

In the remainder of this decision references to the 1997 Agreement mean, unless otherwise indicated or unless the context otherwise requires, the 1997 Agreement as amended by the 2000 Supplemental Agreement. The same applies to references to the 1997 Agreement within collective references to the Agreements.

The bundle of documents for the Appeal contains photographs of the Sandbach Site. The photographs show an area, situated in open fields, enclosed by a wooden post and rail fence with a metal barred gate. Within this fenced off area is a smaller area, enclosed by a higher metal mesh fence, topped with strands of barbed wire and incorporating a padlocked metal mesh double gate. A number of safety/information notices are affixed to the gate, including a notice stating no entry to unauthorised persons. Within this smaller area, which is best described as a compound, the telecommunications equipment is located. This equipment includes the telecommunications tower, which is bolted to a concrete pad, and also includes a fairly substantial structure, perhaps best described as a cabin, which I assume houses telecommunications equipment/plant, and a separate smaller structure which I understand to be an electricity cabinet. The evidence before the Judge included a witness statement of David Powell, a Regional Asset Manager of APW. A fuller description of the Sandbach Site, and what is known of its history can be found in Mr Powell’s witness statement. The Decision records, at Paragraph 20, that Mr Powell was not called to give oral evidence. Given that the Judge took the evidence in Mr Powell’s witness statement into account, I assume that this means that Mr Powell’s evidence in his witness statement was not challenged, and was incorporated into the evidence before the Judge on that basis.

The evidence of Mr Powell is that APW purchased the freehold interest in the Sandbach Site on 31^st October 2022. I believe that the freehold title to the Sandbach Site is registered under title number CH718616. The office copy entries for this freehold title disclose that APW was registered as proprietor of the Sandbach Site on 7^th November 2022.

The operator of the telecommunications equipment now present on the Sandbach Site is OT. I will refer to this equipment as “the Sandbach Equipment”. I use this separate definition because I do not know to what extent, if at all, the Sandbach Equipment is the same telecommunications equipment which was originally installed on the Sandbach Site, pursuant to the 1997 Agreement; that is to say the original telecommunications equipment which I am referring to as the PCN Equipment.