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

Fecha: 01-Ene-2024

The grounds of the Appeal

The grounds of the Appeal

65.

In overall terms the case of APW is that the Judge was wrong to construe the Agreements as licences, when he should have held that the Agreements were both leases.

66.

In term of the specific grounds of appeal, as set out in APW’s application to the FTT for permission to appeal (“the Grounds of Appeal”), they can conveniently be divided into two parts.

67.

First, APW contends that the Judge was mistaken in his approach to construing the Agreements; see paragraph 7 of the Grounds of Appeal. The specific complaints are as follows:

(1)

The Judge concentrated on the form of the clauses in the Agreements and the plans annexed to them rather than on their substance and effect.

(2)

The Judge reached his decision by balancing out a number of clauses which were, in his view, indicative of the Agreements being leases against those which were indicative of them being licences, when he should have concentrated on the substance and effect of each clause.

(3)

The Judge held that an agreement granting code rights was “a legal relationship other than a tenancy” by reason of which the grant of exclusive possession did not constitute the grant of a lease.

68.

Second, APW contends that the Judge went wrong in his conclusions on the meaning and effect of various provisions and/or features of the Agreements; see paragraph 8 of the Grounds of Appeal. The specific provisions and/or features of the Agreements which are the subject of this part of the Appeal are identified as follows in the Grounds of Appeal:

(1)

Clause B of each Agreement.

(2)

The plans annexed to each Agreement.

(3)

Clause 10.1 of each Agreement

(4)

The lack of any reference to the 1954 Act.

(5)

The fencing obligations in, respectively, clause 5.1.8 of the 1997 Agreement and clause 5.1.6 of the 2002 Agreement.

(6)

Clause 4.2 of the 1997 Agreement and clause 4.1 of the 2002 Agreement.

(7)

The fact that the Agreements were not made by deed.

(8)

Clause 7.5 of the 1997 Agreement and clause 7.7 of the 2002 Agreement.

(9)

Clause 8.1 of each Agreement.

(10)

Clause 2.3 of the 1997 Agreement and clauses 2.4 and 2.5 of the 2002 Agreement.

69.

As part of this attack on the Judge’s conclusions in relation to the provisions and/or features of the Agreements, APW says that the Judge, in considering the 2000 Supplemental Agreement, failed properly or at all to have regard to and/or properly to understand certain matters; see paragraph 9 of the Grounds of Appeal. The specified matters are as follows:

(1)

The 2000 Sandbach Plans, as evidence of what the operator had in fact done pursuant to the terms of the 1997 Agreement; and/or

(2)

The factual position as evidenced by the 2000 Sandbach Plans which made it clear, objectively, that the operator had asserted an entitlement to exclusive possession of the Sandbach Site, under the terms of the 1997 Agreement; and/or

(3)

The factual matrix known to the parties at the time when the 2000 Supplemental Agreement was made; and/or

(4)

The intention of the parties as evidenced by the 2000 Sandbach Plans, which made it clear, objectively, that the parties were intending to confer upon the operator an entitlement to exclusive possession of the extended compound, as shown on the 2000 Sandbach Plans.

70.

In relation to the 2000 Supplemental Agreement, the case of APW is that the Judge should, on a proper consideration of the plans and the factual matrix as at the date of entry into the 2000 Supplemental Agreement, have found that the 2000 Supplemental Agreement granted a lease of the Sandbach Site (as extended), even if the 1997 Agreement had not granted a lease; see paragraph 10 of the Grounds of Appeal.

71.

The Grounds of Appeal, as summarised above, have now been elaborated by the written and oral submissions of Mr Holland and Mr Clark for the hearing of the Appeal.