[2024] UKUT 216 (LC)

This reference concerns the renewal under Part 5 of the Electronic Communications Code of the lease of a greenfield telecommunications site at Vache Farm near Chalfont St Giles in Buckinghamshire (“the Site”). It provides the Tribunal with its first opportunity since EE Ltd and Hutchison 3G UK Ltd v Affinity Water Ltd [2022] UKUT 8 (LC) (“Affinity”) and EE Ltd and Hutchinson 3G UK Ltd v Stephenson and another [2022] UKUT 180 (LC) (“Stephenson”) to determine the appropriate rent or consideration for such a site under paragraph 24 of the Code.

The previous lease of the Site was granted by the owners of Vache Farm in 2005 for a term of 15 years and was assigned to the claimants (“EE/H3G”) in 2015. In 2018 the respondent, AP Wireless II (UK) Ltd (“APW”), acquired an overriding lease of the Site for a term of 50 years and became EE/H3G’s immediate landlord. The rights conferred by the previous occupational lease continued under the provisions of the Code after the expiry of the contractual term in May 2020.

EE/H3G’s reference to the Tribunal seeking new code rights was made in December 2020 but was stayed pending appeals in other cases which have now been resolved. The principle that a new lease should be granted is no longer in dispute and most terms have been agreed between the parties. It is agreed that the new lease will be for ten years with a break exercisable by the operator after five years. There will be a rent review by reference to RPI also after five years. The only significant terms remaining in dispute are the amount of the rent and whether the site provider, APW, should have the right to terminate the lease for redevelopment.

At the hearing of the reference EE/H3G were represented by Mr Oliver Radley-Gardner KC and APW by Mr Toby Watkin KC and Mr Wayne Clark. Evidence concerning operational matters was given by Mr Noel Lester MRICS, a regional property manager at MBNL (a joint venture company between EE and H3G), Mr David Powell, a regional asset manager for APW, and Mr Nicholas Ward, a regional director of asset management at APW. Valuation evidence for EE/H3G was given by Mr Colin Cottage MRICS, Managing Director of Valuation and Compensation at Ardent Management Limited and for APW by Mr Paul Williams MRICS, Head of Telecoms at Carter Jonas LLP.