LC-2023-000734 - [2025] UKUT 00058 (LC)

The planning issues

Given the amount of evidence and argument which we heard on the planning issues, we find it convenient to deal with the planning issues first, and then to apply our conclusions on the planning issues, where relevant, to the remaining issues raised by Preliminary Issue (c). We begin by setting out the relevant provisions of planning legislation and the sequence of events leading to the grant of the Prior Approval.

The Town and Country Planning Act 1990 (“TCPA 1990”), as amended, defines “development” at Sections 55(1) and (1A) as follows:

“55

(1)…”development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A) For the purposes of this Act “building operations” includes-

(a)

demolition of buildings

(b)

rebuilding;

(c)

structural alterations or additions to buildings; and

(d)

other operations normally undertaken by a person carrying on business as a builder.”

Under Section 57 of the TCPA 1990, planning permission is required for development and, under Section 58(a), it may be granted “by a development order”. The General Permitted Development Order 2015 (“GPDO”) is a development order for that purpose.

Pursuant to Article 3 of the GPDO, planning permission is granted for the classes of development described as permitted development in Schedule 2 to the GPDO, subject to any relevant exception, limitation or condition specified in that schedule. Part 16 of Schedule 2 concerns permitted development within the communications sector and Class A concerns Code operators. Permitted development is defined (so far as relevant to these proceedings) as follows:

“A.

Development by or on behalf of an electronic communications code operator for the purpose of the operator’s electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of-

(a)

The installation, alteration or replacement of any communications apparatus,

…”

The limitations and conditions applicable to permitted development under Class A make it necessary, in an AONB, to seek the prior approval of the LPA to erect a mast up to 25m in height. A mast of any greater height would require full planning permission. The prior approval process is set out in paragraph A.3 of Part 16. Paragraphs A.3(4) and A.3(5) provide (so far as relevant):

“(4)

Before beginning the development … the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting and appearance of the development.

(5)

The application must be accompanied by-

(a)

A written description of the proposed development and a plan indicating its proposed location…”.

Paragraph A.3(9) provides (so far as relevant):

“(9)

The development must, except to the extent that the local planning authority otherwise agrees in writing, be carried out-

(a)

where prior approval has been given as mentioned in sub-paragraph (8)(b)(i), in accordance with the details approved;

...”

Entrust submitted the Prior Approval Application (to determine if prior approval was required) to Maidstone BC on 14^th December 2022. The Prior Approval Application was made on behalf of AP Wireless, the parent company of Icon and APW. The application form included a section which said “Please specify the type of apparatus to be installed or altered (e.g. call box, mast)”. This was completed with the following words:

“The removal of 2no. telecommunications base stations on 2no. masts (1no.15m and 1no.18m in height) and the consolidation of equipment on to 1no.25m lattice tower. The new tower will include relocation of 6no.antenna to 1no. new ring frames which will be attached to 1no. proposed 25m tower. In addition, to the extension of the perimeter fence and ancillary development thereto. For its prior approval to: siting and appearance.”

The plan submitted with the application form is included below, and is of note in the dispute because it did not include the Vodafone or MBNL sites:

The covering letter to the application form re-stated the description of the proposal set out above and included, inter alia, the following paragraphs:

“The proposed mast is to replace two existing installations at Steppes Hill site. The site selection and design are discussed further in the Site Supplementary Information document.

…

All Icon Tower installations are designed to be fully compliant with the public exposure guidelines established by the International Commission on Non-Ionizing Radiation Protection (ICNIRP). … A certificate of ICNIRP compliance is required for this installation and is included with the planning submission.”

Information provided in the 14 page Site Supplementary Information (“SSI”) document and in the ICNIRP certificate is the subject of disputed interpretation by the experts which goes to the heart of the planning issues.

The Prior Approval Application was considered by a planning officer at Maidstone BC who wrote a delegated report (“the Report”) dated 14^th February 2023. The Report stated at paragraphs 6.17 and 6.18:

“6.17

In this case, it is considered by Officer’s that due to there currently being no mast or telecommunications at the site there would be an impact from the proposal and as such prior approval is required.

6.18

In concluding that prior approval is required, the only matters that can be considered are the siting and appearance of the proposal. The principle of a mast and paraphernalia falls within permitted development and any decision cannot decide whether it is considered necessary that a mast to support the enhanced network coverage is required.”

The Report recommended the grant of prior approval without conditions, but the contents of the Report are the subject of disputed interpretation by the experts, which we deal with below.

The Prior Approval was granted for the proposal on 14^th February 2023, the same date as the Report, in the following terms:

“Prior Notification for Electronic Communications for the removal of 2no. telecommunications base stations on 2no. masts (1no.15m and 1no.18m in height) and the consolidation of equipment on to 1no.25m lattice tower. The new tower will include relocation of 6no.antenna to 1no. new ring frames which will be attached to 1no. proposed 25m tower. In addition, to the extension of the perimeter fence and ancillary development thereto. For its prior approval to: siting and appearance.”

On 19^th July 2024 Maidstone BC agreed an amendment to the Prior Approval to allow an amended design with a second headframe on the New Tower. The accompanying plan showed a slight alteration to the footprint of the site, although this was not referred to in the letter seeking agreement to the amendment. Nothing turns on this amendment.

We have the benefit of an agreed list of the planning issues which we have to resolve. The agreed planning issues are as follows:

Planning issues (1) and (2) were central to the Respondents’ basic position that compliance with the Prior Approval required, in three stages, construction of the New Tower, removal of the Masts and relocation of the Active ECA from the Masts on to the New Tower. The first of the three stages of its intended redevelopment had been completed and stages two and three remained to be completed. Without compliance the New Tower would be unlawful and Icon would be at risk of enforcement action by the LPA, giving rise to planning issues (3) and (4). However, it was submitted that the third stage, involving relocation of the antennas, was not actually a condition of the Prior Approval. References in the application to “consolidation” and “relocation” were, Mr Henderson said in closing, expressions of commercial intent which relied on commercial relationships to be achieved. In the SSI it had been explained that Icon was a tower company which sought to provide towers for sharing by a number of operators. Relocation of antennas is a commercial matter which Icon cannot control; it is not a material planning consideration, as it does not serve a planning purpose, and therefore enforcement action would be unreasonable (in the Wednesbury sense) and an improper and unlawful use of the LPA’s powers. Moreover, the prior approval process is concerned only with siting and appearance which in this case involved the removal of two masts in exchange for the erection of a tower. The absence of some or all of the antennas would not change the LPA’s assessment of the acceptability of siting and appearance, so there would be no reason for them to take enforcement action.

It was originally Vodafone’s primary case that the Prior Approval concerned only the siting and appearance of the New Tower and should not be read as requiring, as a condition, completion of the second and third stages. The likelihood of the LPA taking enforcement action to ensure completion of the second and third stages was very low, and the hypothetical prospect of a prior approval for the New Tower without the removal of the Masts, namely planning issue (5), would have been good. It was originally Vodafone’s alternative position that, should the second and third stages be considered a condition of the Prior Approval, the respondents could free themselves from the condition by proper engagement with the LPA. This gave rise to planning issues (6) and (7).

By the time we received closing submissions on planning, Mr Radley-Gardner’s primary case [T6/48/22 -49/25] was that the Prior Approval had authorised, under the GPDO, the siting and appearance of a fully functioning mast, which required completion of all three stages. The Respondents were unable to deliver the antennas and without completion of that stage the New Tower would be unlawful under the GPDO. His alternative position was that the Prior Approval included no condition requiring removal of the Masts because the Report was ambiguous on that.

The planning experts were asked to address each of the planning issues. Vodafone instructed Mr Norman Gillan to give expert planning evidence. Mr Gillan has a BA(Hons) in Economics and Business and a PgDip in Town Planning. He has been a Member of the Royal Town Planning Institute (“the RTPI”) since 2003. For 16 years Mr Gillan worked for a number of planning consultancy firms, predominantly in the communications sector, and in 2016 he set up Gillan Consulting Ltd. He has extensive experience in undertaking planning applications and appeals, and in prior approval applications. The Respondents instructed Mr Saleem Shamash. He qualified as a chartered surveyor in 1986 and has worked in the electronic communications sector continually since then. He is also Member of the RTPI and has specialised in planning work within the sector. Between 2000 and 2020 Mr Shamash was National Town Planning Manager at Arqiva. In 2020 he became a sole practitioner and has since advised the Respondents on various matters. Like Mr Gillan, Mr Shamash has extensive experience of town and country planning matters in the communications sector. Each expert produced a report and a supplemental report, and they combined to produce a joint statement. We now review each expert’s opinion across the range of planning issues.

It was Mr Gillan’s opinion on issues (1) and (2) that removal of the Masts and relocation of Active ECA was not part of the application and not part of the Prior Approval. The application for the Prior Approval did not specify or identify, for example by grid reference or planning reference number, the precise telecommunications base stations and masts to be removed. The covering letter submitted by Entrust with the application referred only to the Orange Site. The additional information provided in the SSI was muddled, referring variously to “existing installation” and “existing installations” without being clear whether this was the Orange Site, with its remaining concrete base/s, or the Masts. Importantly, in Mr Gillan’s view, the plan accompanying the application, which is a statutory requirement for Prior Approval, did not include the Masts. Although the heights of the masts to be removed were stated in the proposal, if removal of them was to form part of the “proposed development” the sites should have been included in the plan.

Mr Gillan had analysed the Report in some detail and concluded that rather than approving the removal of the Masts, the LPA had explicitly used their presence to provide a rationale for approving the siting and appearance of the New Tower. He relied in particular on the penultimate paragraph of the Report in which it was stated:

“On balance, it is considered that prior approval for a lattice tower on this site is recommended for approval. I have reached this decision largely on the basis that the site history has provided evidence that a similar structure was implemented to the site in 2002, as well as the fact that further masts exist along the backdrop of the field and that the site is well screened by woodland. It is arguable that this limits the harm in terms of the location in that the harm would not be so overt to views or openness that it would warrant refusal.”

Following this reasoning, Mr Gillan’s opinion on issue (5) was that an alternative application for prior approval of the New Tower would have been approved without reference to removal of the Masts, because that was what the LPA had thought it had approved in any event. However, in cross-examination by Mr Henderson, Mr Gillan admitted [T4/102/23-103/5] that if he had been the case officer carrying out the site inspection he would have been 99% sure that the Masts visible in the field would be the masts to be removed, as stated in the application. Mr Gillan also agreed [T4/120/21-121/15] that the Report was not a part of the approved details and that there was no ambiguity in the description of the development in the decision notice.

If, contrary to his opinion, removal of the Masts and relocation of the antennas was required under the Prior Approval, it was Mr Gillan’s opinion on issue (3) and (4) that the LPA would seek informal resolution of the matter, rather than taking enforcement action. Informal resolution might involve reaching a written agreement with Icon to remove reference from the Prior Approval to removal of masts and relocation of antennas. Alternatively, it might involve submission and approval of a retrospective planning application for retention of the New Tower. If the LPA did choose to take enforcement action, in Mr Gillan’s opinion an enforcement notice could be successfully appealed. His opinion on issues (6) and (7) was therefore that the prospects were high of the LPA agreeing either to grant retrospective planning permission, or to amend the Prior Approval.

Mr Gillan then went on to say that even if, in his opinion, the Prior Approval did require removal of the Masts and relocation of the antennas, relocation of the antennas was not a matter within the control of the Respondents and therefore was unenforceable under planning law. If there was a risk of planning enforcement, then that would not be eliminated by removal of the Masts alone because a tower without any antennas would not be within the scope of the prior approval process.

In contrast to Mr Gillan, it was Mr Shamash’s opinion on issue (1) that removal of the Masts was explicitly included in the wording of the Prior Approval. The two installations were sufficiently obvious that the sites and their occupiers did not need to be identified in the application or on a location plan. There is no statutory requirement specified for the shape and form of a location plan and, unlike a conventional planning application, there is no requirement in the GPDO to provide a plan with the application site edged red and other land owned by the applicant edged blue. In cross-examination by Mr Radley-Gardner [T5/60/24-61/3] Mr Shamash explained that the GPDO regime is intended to be a light touch regime, such that an operator is freed from the usual bureaucracy and cost of a full planning application. Mr Shamash’s opinion on issue (3) was that the possibility of the LPA taking enforcement action for non-removal of the Masts was high, once they had been alerted to the breach. The presence of three masts in the Field would be viewed as an unnecessary proliferation of masts, contrary to national and local planning policy, and would undermine the decision to grant the Prior Approval. Enforcement action could be taken either through an enforcement notice or a Breach of Condition Notice.

On issue (5) it was Mr Shamash’s opinion that the LPA would not have granted prior approval for a 25m high new tower in an AONB without the benefit of consolidation, from two existing masts to one, to outweigh the harm, in terms of visual amenity, which the appearance of a tower visible above the tree line would cause. Similarly on issue (6) he considered that the LPA would not be prepared to grant retrospective permission for retention of the New Tower without removal of the Masts. On issue (7) Mr Shamash did not consider it likely that an amendment to the Prior Approval would gain the agreement of the LPA since it would be a fundamental alteration to the details rather than a minor amendment.

On issues (2) and (4), regarding, relocation of antennas, it was Mr Shamash’s opinion that this detail of the Prior Approval was a less material aspect – constituting a requirement not to complete the development but to carry it out in accordance with the approved details. The LPA would be conscious that it could not enforce a condition that relies upon the cooperation of a third party outside the control of the applicant, so enforcement issues would be more nuanced. In any event, Mr Shamash considered that if the Masts were removed then Vodafone, VMO2 and MBNL would be very likely to relocate their antennas to the New Tower.

Having heard lengthy evidence and argument on the planning issues that we are asked to determine, we find that the answers to those issues now fall into place quite easily. We are grateful to the experts for directing us to the relevant parts of planning law and policy and for assisting us in applying them to the circumstances of this case. We found them both to be knowledgeable, helpful and sincere in their opinions. The key issue, number (1), is whether the removal of the Masts is required by the Prior Approval. Mr Gillan’s opinion on this was that the Prior Approval did not require removal of the Masts, but he was not able to sustain the reasons for that opinion under cross-examination. His reliance on the ambiguity of the Report was undermined when he acknowledged, helpfully, that the details in the decision notice itself were not ambiguous and, moreover, that the Report did not have any status as part of the approved details. So, as Mr Gillan’s reasons for his opinion fell away, we do not give weight to it and rely in full on Mr Shamash’s evidence and reasoning to conclude that removal of the Masts is required by the Prior Approval.

Once the answer to the key issue is established, we have a firm basis for considering the other issues related to removal of the Masts. Looking next at the hypothetical question in issue (5), whether the LPA would have granted prior approval for the erection of the New Tower without the associated removal of the Masts, it was Mr Gillan’s opinion that they would have done so, because that was already the effect of the Prior Approval. In light of our conclusion in issue (1) we cannot give weight to that opinion and are persuaded by Mr Shamash’s evidence that the policy considerations to be taken into account in an AONB are such that removal of existing masts would be required to outweigh the harm of a 25m high tower visible above the tree line. For the same reasons we adopt Mr Shamash’s evidence that for issues (6) and (7) there is no or, at best, a very low prospect of the LPA granting retrospective planning permission for retention of the New Tower and the Masts, or of the LPA agreeing an amendment to the Prior Approval to permit that.

Turning finally to issues (2) and (4), concerning relocation of the Active ECA on the Masts, there was little difference between the experts who each said, albeit in different terms, that relocation of the antennas referred to in the approved details is not a condition of the Prior Approval and would therefore not be subject to enforcement action. We accept the reasoning that relocation of Active ECA is not a matter that concerns siting and appearance for the purposes of a prior approval and that, since it is not within the control of the Respondents, it is unenforceable as a planning condition. We note, in passing, Mr Radley-Gardner’s argument that, until it has functioning antennas on it, the New Tower will be unlawful under the GPDO. Neither expert gave evidence to suggest otherwise. However, this goes beyond the set of agreed planning issues which we were asked to determine and we make no further comment.

For clarity we set out below the planning issues and our findings:

Do the Claimed Works constitute redevelopment of all or part of the land to which the code agreement relates or any neighbouring land, within the meaning of Paragraph (c)?

There are two interlinked issues contained within this question. The first issue is whether the Claimed Works constitute works of redevelopment of land, within the meaning of Paragraph (c). The second issue is whether the Claimed Works include works of redevelopment on all or part of any neighbouring land, so far as the Claimed Works are said to include works of redevelopment on neighbouring land and so far as the Claimed Works do qualify as works of redevelopment.

The starting point is to identify the land with which we are concerned, in this context. By reference to the wording of Paragraph (c) “the land to which the code agreement relates” is the Vodafone Site.

By way of reminder, the Claimed Works, that is to say the works relied upon by the Respondents as the intended redevelopment within the meaning of Paragraph (c), were identified in the following terms in the Respondents’ closing submissions:

We will use the expression “Item (i)” to refer to that part of the Claimed Works listed in sub-paragraph (i) above, and so on for the remaining sub-paragraphs above. In referring to the works under Item (vi) it is convenient to refer to these works as the removal of the Masts. We do however keep in mind that this work would also, we assume, involve the removal of a certain amount of other associated Passive ECA on, respectively, the Vodafone Site and the MBNL Site. In relation to Item (vii) we also bear in mind that if there was to be migration to the New Tower from the Vodafone Site and/or the MBNL Site this might, as we understood the relevant evidence, involve the transfer of the Active ECA from the relevant Site, or the installation of new Active ECA.

We find it convenient to take first the second of the above two issues, namely the neighbouring land question. By way of reminder, this question is whether the Claimed Works include works of redevelopment on all or part of any neighbouring land, so far as the Claimed Works are said to include works of redevelopment on neighbouring land and so far as the Claimed Works do qualify as works of redevelopment. As can be seen, the only part of the Claimed Works which involves work on the Vodafone Site is part of Item (vi); namely the removal of the Vodafone Mast and infrastructure from the Vodafone Site. Conceivably, and so far as it matters, it might be said that part of Item (vii) qualifies as work on the Vodafone Site, in the sense of Active ECA being removed from the Vodafone Site to the Orange Site, if this was to occur. In reality however it seems to us that this part of Item (vii), if it was to occur, can equally be viewed as part of Item (vi). The remainder of the Claimed Works comprises work on the Orange Site, the MBNL Site and, in the case of Item (iv), other parts of the Field. It follows that each of these areas of land must qualify as neighbouring land, if the relevant parts of the Claimed Works are to fall within the terms of Paragraph (c).

The first question which is raised in this context is whether it is possible to have a set of redevelopment works which are works both to the land to which the relevant code agreement relates and neighbouring land. Paragraph (c) refers to redevelopment of all or part of the land to which the code agreement relates “or” any neighbouring land. In this context we accept the submission of the Respondents’ counsel that “or” is not disjunctive. We accept that the word “or” should be read as including a situation where the relevant redevelopment work is intended for land to which the code agreement relates and neighbouring land, as well as a situation where the relevant redevelopment work is intended for one or the other. We say this for two related reasons.

First, it was not in dispute before us that Paragraph (c) derives, at least in part, from paragraph (f) of Section 30(1) of the 1954 Act (“Paragraph (f)”). The relationship was helpfully analysed and explained by the Tribunal in EE Ltd v Chichester [2019] UKUT 164 (LC) [2019] L.&T.R. 21, at [31]-[40]. The Tribunal were concerned with Paragraph 21(5), but the language of that sub-paragraph is the same as in Paragraph (c). The relevant part of the decision of the Tribunal in that case is too lengthy to quote in full, but we highlight [32], [33] and [38]:

“32

The terms are therefore very similar to those in para.21(5), allowing for the fact that Code rights need not necessarily be conferred in a lease but may amount to an easement or a contractual licence, or may relate to a temporary matter such as lopping trees. So wider language is used in para.21(5) than in s.30(1)(f); the relevant person can resist if he or she cannot reasonably carry out the redevelopment “if the order were made” rather than “without obtaining possession of the holding”. But the core idea is the same.

33

The connection with s.30(1)(f) is apparent from the terms of the Law Commission’s recommendation, at para.6.110(3) of its report The Electronic Communications Code (Law Com No.336, 2013), that it should be possible for the site provider to resist the imposition of code rights on the grounds that he or she: “intends to redevelop all or part of the land on which the apparatus is sited, or neighbouring land, and could not reasonably do so unless the Code Rights are brought to an end”. The footnote to that paragraph reads “Compare s.30(1)(f) of the Landlord and Tenant Act 1954”.

“38.

For the respondents, Mr Maclean QC resisted this. He pointed to the different terms of s.30(1)(f) of the 1954 Act and of para.21(5) of the Code and says that their different wording indicates that they are very different provisions. That is clearly not correct. Paragraph 21(5) was explicitly modelled, by the Law Commission, on s.30(1)(f); the difference in wording is trivial and is dictated by its context (see [32] above). However, we agree with Mr Maclean QC that the case law associated with s.30(1)(f) is not binding authority in the context of the Code and of para.21(5). Clearly the Code, new as it is, must be looked at with a clean slate and as a fresh start. The principles applicable to the 1954 Act should be adopted where they are relevant, although we are mindful of the need to be aware of the different context in Code cases. Not all principles will be relevant and the factual background will have an effect on this; issues of timing, for example, need to be carefully considered. But we accept (as the respondents themselves argue) that where intentions have changed over time it is the intention at the date of the hearing that is relevant: Betty’s Cafes Ltd v Phillips Furnishing Stores Ltd [1959] A.C. 20. And it makes obvious sense to adopt the test imposed in Cunliffe. Parliament’s intention would be frustrated if the defence in para.21(5) could be made out where the relevant person did not have a firm intention to carry out the redevelopment plan, or where the plan was not something that that person has a reasonable prospect of being able to bring about of their own volition.”

Applying this approach, it seems to us that it is legitimate to consider authorities on Paragraph (f), in relation to Paragraph (c), subject to keeping in mind that the principles applicable to the 1954 Act should only be adopted where they are relevant. One principle which does seem to us to be relevant is the following statement of Balcombe LJ in Palisade Investments Ltd v Collin Estates Ltd [1992] 2 EGLR 94, at 97D, as quoted by Auld LJ in his judgment in Dolgellau Golf Club v Hett [1998] L.&T.R. 217 at page 228 of the report:

“….the Act was intended to be construed sensibly, so as to hold a fair balance between landlord and tenant. It is not….., to be construed so as to create a series of artificial hoops through which the landlord must jump before he must satisfy the necessary intention.”

It seems to us that this statement, as a general statement of principle can also be applied to Paragraph (c). In terms of our general approach to Paragraph (c) we also accept the submission of the Respondent’s counsel that, while Paragraph (c) is based on Paragraph (f), its terms are, in certain respects, wider than Paragraph (f). One example of this is, of course, the reference to neighbouring land.

Applying the general principles which we have just identified, it seems to us that it would be inconsistent with those general principles to construe the word “or” in Paragraph (c) as referring to works on the relevant code agreement land or works on the relevant neighbouring land, but not both.

Second, and even without application of the general principles which we have just identified, it seems to us that it would be absurd if a redevelopment which straddled the boundary between the code agreement land and neighbouring land could be excluded from Paragraph (c) on that basis. So far as Paragraph (c) is concerned, it is clear that the policy behind the Code is that a site provider should not be prevented from carrying out redevelopment of the code agreement land or neighbouring land by the presence of the operator, in circumstances where the site provider cannot reasonably carry out the redevelopment unless the code agreement is brought to an end. Put more simply, works of redevelopment falling within Paragraph (c) should not be prevented by code rights. It seems to us that it would be inconsistent with this policy if works of redevelopment which otherwise satisfied the terms of Paragraph (c) were disqualified by the fact that they were to be carried out partly on the code agreement land and partly on the neighbouring land.

We therefore conclude that the Claimed Works in the present case are capable of being considered together, notwithstanding that they relate both to the Vodafone Site and other land. It is neither necessary nor appropriate to segregate works on the Vodafone Site and the other land as separate works of redevelopment for the purposes of Paragraph (c), assuming that they otherwise qualify as one set of works, simply because they are works on separate parcels of land.

This brings us directly to the question of whether the Orange Site, the MBNL Site and the remainder of the Field can qualify as neighbouring land. So far as authority was concerned, we received much less assistance on this question than we had hoped for. We do not say this by way of criticism of the parties. It may be that authority on the question of what is meant by “neighbouring land” is limited. In the event we were only referred to a single authority on the meaning of neighbouring land, which we should deal with first. The case in question was Northampton BC v Lovatt (1998) 30 HLR 875. The case was concerned with a claim for possession brought by Northampton Borough Council against Mr and Mrs Lovatt, who were tenants of the council pursuant to a secure tenancy, within the meaning of Part IV of the Housing Act 1985. The three eldest sons of the tenants had engaged in a course of criminal and anti-social conduct on the housing estate where they lived. The council obtained an order for possession against the tenants in reliance, principally, upon the ground of possession set out in Ground 2 in Schedule 2 to the Housing Act 1985, which is in the following terms:

“The tenant or a person residing in the dwelling house has been guilty of conduct which is a nuisance or annoyance to neighbours, or has been convicted of using the dwelling house or allowing it to be used for immoral or illegal purposes."

The order for possession was challenged in the Court of Appeal on the ground, amongst others, that the activities of the tenants’ sons had occurred too far away from their home to constitute nuisance or annoyance to neighbours. The bulk of the relevant conduct which had been found to constitute the nuisance and annoyance occurred more than 100 metres from the tenants’ home, at various locations around the estate. All three members of the Court of Appeal gave substantive judgments. The leading judgment was given by Henry LJ, who concluded that the appeal should be dismissed and the possession order upheld. Chadwick LJ reached the same conclusion, for the reasons expressed in his own judgment, which were similar but not the same as the reasons expressed by Henry LJ. Pill LJ gave a dissenting judgment, setting out the reasons why, as he concluded, the appeal should be allowed and the possession order set aside.

In their judgments the members of the Court of Appeal were principally concerned with the scope and reach of Ground 2, within the context of the secure tenancy regime. Their Lordships were not directly concerned, in the abstract, with the meaning of the word “neighbours” in Ground 2. In his judgment Henry LJ reviewed the limited case law to which the Court of Appeal had been referred, and the legislative history of the reference to neighbours in Ground 2. For present purposes the relevant feature of this judgment was that Henry LJ was not persuaded that the reference to neighbours in Ground 2 was the equivalent of a reference to adjoining occupiers. As he concluded, at pages 882-883 of the report:

“I turn to the construction of Ground 2. Mr Wood's first submission is that Ground 2 is concerned with activities carried on by the tenant (or persons residing with him) on or at the premises which are detrimental to the peace, comfort and amenity of people living nearby.

First, he contends that the terms "neighbours" and "adjoining occupiers" are interchangeable. I do not agree. All adjoining occupiers are neighbours, but not all neighbours are adjoining occupiers. Neighbours is the wider word, and was intended to be - I agree with the editors of Woodfall on Landlord and Tenant that the intention was to avoid "arid disputes as to proximity". It is clearly intended to cover all persons sufficiently close to the source of the conduct complained of to be adversely affected by that conduct. In these days of amplified music, there is force in G K Chesterton's observation:

"Your next-door neighbour ... is not a man; he is an environment."

In his dissenting judgment Pill LJ addressed himself principally to the argument of the tenants that Ground 2 only referred to conduct in, or in and around the demised dwelling house. Pill LJ accepted this argument, and for that reason applied a narrower meaning to the word “neighbours” than Henry LJ, regarding the reference to neighbours as equivalent to adjoining occupiers. As can be seen, this reasoning was essentially concerned with the location of the anti-social conduct, not with the geographical reach of the reference to neighbours. The third judgment in the Court of Appeal was given by Chadwick LJ. In reaching the same conclusion as Henry LJ, Chadwick LJ also addressed himself to the question of what was meant by the reference to neighbours in Ground 2. The answer which he gave to that question, at pages 892-893 of the report, was very much tied to the legislative context of Ground 2:

“The conduct at which Ground 2 is aimed is conduct within the neighbourhood which causes nuisance and annoyance to others within the neighbourhood. The neighbourhood, for this purpose, is the area with which the Council is identified, by reason of its status as local housing authority and landlord, as having responsibility for the amenities and quality of life; that is to say the area within which persons affected may fairly regard the Council as having some responsibility for those whose conduct is causing the nuisance or annoyance. The persons affected will be neighbours for the purposes of Ground 2. Who those persons are in any particular case will, of course, depend on the circumstances of that case. In the present case I am satisfied that the District Judge was entitled to take the view that they included the persons identified in his judgment.”

As can be seen, the statutory context in which Northampton was decided was very different to the present case. We do however take the case as authority for the proposition that a reference to neighbours is not necessarily limited to adjacent occupiers, and is capable of extending more widely. How much more widely the concept of neighbour, or associated expressions is capable of extending depends heavily upon the context. For this reason, and at the more specific level, we do not think that the question of the extent of the expression “neighbouring land” in Paragraph (c) is much illuminated by considering what is meant by “neighbours” in a statute intended to allow landlords of property held on secure tenancies to evict tenants guilty of anti-social behaviour towards those living around them.

Returning to Paragraph (c) the reference to neighbouring land must, it seems to us, imply a test of geographical proximity. The expression clearly cannot extend to any land, geographically remote to the code agreement land. The relevant land must, at the least, have some degree of geographical proximity to the code agreement land.

It seems to us that a helpful way to approach the question of what degree of geographical proximity is required is to consider what the reference to neighbouring land in Paragraph (c) was intended to achieve. In general terms, the answer to that question seems to us to be that the reference to neighbouring land is intended to address a situation where the presence of the relevant ECA on the code agreement land obstructs the relevant redevelopment of neighbouring land; whether that redevelopment is confined to the neighbouring land or engages both the code agreement land and the neighbouring land. In either case there is a relationship between the code agreement land and the neighbouring land in the sense that the redevelopment of the neighbouring land cannot proceed without the removal of the ECA from the code agreement land.

In this context we also note the distinction between Paragraph (f) and Paragraph (c). Paragraph (f) is confined to works on the holding, as that expression is defined in the 1954 Act. Paragraph (c) is more flexible in this respect.

With the above points in mind, it seems to us that the reference to neighbouring land is capable of including land which is not actually adjacent to the code agreement land. In our view the reference to neighbouring land is capable of including land within a sufficient degree of proximity to the code agreement land to qualify as neighbouring land, without necessarily having to be adjacent to the code agreement land. What constitutes a sufficient degree of proximity seems to us to be a fact sensitive question, which does not admit of a general answer.

With the above test of geographical proximity in mind, we turn to the relevant parts of the Claimed Works in the present case which, as we have explained, means the bulk of the Claimed Works. Assuming, for these purposes, that the Claimed Works otherwise satisfy the requirements of Paragraph (c), our analysis is as follows.

In closing submissions Mr Radley-Gardner argued strongly that none of the Claimed Works outside the Vodafone Site were works on neighbouring land. His essential point was that the reference to neighbouring land implied a physical relationship with the relevant code agreement land. The situation needed to be one where the code agreement land had to be cleared of ECA in order, physically, to allow the redevelopment of the neighbouring land. In the present case the only relationship between the Vodafone Site and the other Sites and (we assume) the remainder of the Field, was that, on the Respondents’ case, they were under a legal/planning obligation to remove the Vodafone Mast and the MBNL Mast, in order to enable the redevelopment of the Orange Site including (we assume) any ancillary works on the remainder of the Field. Mr Radley-Gardner submitted that such a legal relationship was insufficient as, in theory, it would permit a site provider to yoke together any two properties, for the purposes of Paragraph (c), no matter how far apart they might be, by the device of a legal obligation such as a planning condition.

In our view this argument is misconceived. The test of what is neighbouring land in Paragraph (c) seems to us to be a test of geographical proximity, not legal relationship. The presence or absence of a legal relationship is relevant to the question of whether works on different areas of land can be treated as one set of redevelopment works for the purposes of Paragraph (c). If the redevelopment of the other land involves no actual requirement to carry out work on the code agreement land, there is clearly an argument to be made that the work on the code agreement land should not be treated, for the purpose of Paragraph (c), as part of the redevelopment of the other land. In such a case there is clearly also an argument to be made that the clearing of the ECA from the code agreement land is not reasonably required in order to allow the redevelopment of the other land to proceed. We do not think however that these arguments are relevant to the question of what other land is capable of constituting neighbouring land. As we have said, this latter question seems to us to engage a test of geographical proximity. We bear in mind that schemes of redevelopment can be both complicated and extensive. Planning requirements, in particular, may necessitate considerable off-site works. It would, in our judgment, be odd if the test for determining neighbouring land was a physical one, which depended upon whether the relevant work on the neighbouring land could only be carried out, in physical terms, by clearing the ECA from the code agreement site. It seems to us that such a test would be problematic. It is not difficult to think of examples where a set of redevelopment works could, physically, be constructed on land adjacent to the relevant code agreement land but, for legal/planning reasons, could only be constructed if associated works could be carried out on the code agreement land which necessitated the removal of the ECA from the code agreement land.

Turning to the Claimed Works themselves and starting with Item (iv), Mr Freemantle explained that, depending upon the requirements of the operators on the Orange Site, it might be necessary to carry out trenching works on the Field in order to bring new power and fibre connections to the Orange Site. In closing submissions Mr Watkin submitted that Icon had the right to do this, pursuant to rights to install and run services over the Field granted by clause 12.4.1.2 in box 12 of the transfer dated 25^th September 2018, by which APW acquired the freehold title to the Steps Hill Sites. These rights were granted over the Access Way, which was defined to mean the green shaded access route shown coloured green on the plan annexed to the transfer. The same route can be seen on the plan we have included in this decision, shown as a shaded route running around the perimeter of three sides of the Field and connecting to South Street at each end of the boundary between the Field and South Street. We find it difficult to see how the Field cannot be said to be neighbouring land, in relation to the Vodafone Site. The Field constitutes a distinct parcel of land, which encloses the Vodafone Site. In terms of geographical proximity, the Field seems to us to constitute neighbouring land, within the meaning of Paragraph (c).

This leaves the remainder of the Claimed Works, with the exception of the removal of the Vodafone Mast and infrastructure from the Vodafone Site. Here, the question is whether the MBNL Site and the Orange Site can each qualify as neighbouring land. Although we are clearly much more concerned with the Orange Site, it seems to us that the question is essentially the same, for each Site.

This question is not so easily answered, because the Sites are, in geographical terms, located at some distance from each other. In particular, the Orange Site is approximately 160 metres from the Vodafone Site. Is this too far to qualify as neighbouring land?

Although we have not found this an easy question, we have come to conclusion that the Orange Site and the MBNL Site can qualify as neighbouring land. Our reasons can shortly be stated. The test is a fact (or location) sensitive one, based on geographical proximity. The Sites are all located within the Field. They are reasonably close to each other. They are mobile communications sites and, in terms of providing mobile communications coverage their locations are, as we understand the evidence, more or less equivalent to each other. The remainder of the Field, excluding the Sites, is adjacent to the Vodafone Site and is, it seems to us, neighbouring land within the meaning of Paragraph (c). If this is correct, it would be odd if two enclaves within the Field, namely the MBNL Site and the Orange Site, could not also qualify as neighbouring land.

Drawing together all of the above analysis, we arrive at the following conclusion on the second of the two issues which are considering in this part of our decision. We conclude that the Claimed Works, so far as they are to be carried out on land which is outside the Vodafone Site and assuming that they otherwise qualify as works of redevelopment for the purposes of Paragraph (c), constitute works of redevelopment on neighbouring land within the meaning of Paragraph (c). Putting the matter another way, we conclude that the Orange Site, the MBNL Site and the remainder of the Field all constitute neighbouring land, for the purposes of Paragraph (c).

This brings us to the first issue which we have to address, in order to answer the question with which we are dealing in this section of the decision. This first issue is whether the Claimed Works constitute works of redevelopment of land, within the meaning of Paragraph (c). The word “redevelop” is not defined in the Code. In terms of the type of works which are included in the concept of redevelopment, we make the following three general points.

First, we accept that redevelop is a broad expression, capable of including a wide variety of works, provided that they can fairly be described as redevelopment. Equally, redevelopment implies some kind of change in the land which is the subject of the redevelopment, so that what was there before is replaced by something new.

Second, we consider that there is a material contrast to be drawn, as between Paragraph (c) and Paragraph (f). Paragraph (f) refers to the intention to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof. Although the description of the type of works falling within Paragraph (f) is prescriptive, its scope is wide. In particular, qualifying works for the purposes of Paragraph (f) include works of demolition. This leads into the question of whether Paragraph (c), in its use of the word redevelop, includes works of demolition, such as the removal of a mast. In the present case this question does not strictly arise. It was conceded by Mr Watkin, in oral closing submissions, that Paragraph (c) did not include work confined to the removal of a mast from land. This concession was however made on the basis of what Mr Watkin characterised as purposive grounds; namely that if the removal of a mast qualified as redevelopment work for the purposes of Paragraph (c), any site provider could bring a code agreement to an end by formulating an intention to remove the relevant mast. Mr Watkin contrasted the situation where a site provider intended to demolish a water tower which had ECA on it. Mr Watkin submitted that the intention to demolish the water tower would be an intention to redevelop the water tower, within the meaning of Paragraph (c).

While, as we have explained, it is not strictly necessary for us to decide this point, in the circumstances of the present case where it is conceded that taking down a mast is not redevelopment, we do not think that Mr Watkin was right to submit that work of demolition could, in cases other than the taking down of masts, qualify as work of redevelopment. We say this for a couple of reasons.

If Mr Watkin was right to concede that taking down a mast on the relevant land would not qualify as redevelopment work, and we consider that Mr Watkin was right to make this concession, it is difficult to see why other work of demolition, such as Mr Watkin’s water tower example, should qualify as redevelopment work. We cannot see a logical basis for distinguishing between these different types of demolition work. Beyond this, the word used in Paragraph (c) is “redevelop”. Those responsible for the drafting of the Code would have had in mind, it seems reasonable to assume, the wording of Paragraph (f). As we have said, the concept of redevelopment seems to us to mean more than mere demolition works. In a case involving demolition it seems to us also to require the construction of something new, in place of what has been demolished. If it had been intended that the concept of redevelopment should include work comprising only demolition, this could have been made clear by using language similar to that used in Paragraph (f). In the absence of such language we do not consider that mere work of demolition, without more, qualifies as work of redevelopment, within the terms of Paragraph (c). Finally, there is authority to the effect that the demolition of a building on land, without any further work, did not qualify as development work for the purposes of a planning direction (the Town and Country Planning (Demolition – Description of Buildings) Direction 1995; see the judgment of His Honour Judge Pelling KC (sitting as a judge of the High Court) in R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2010] EWHC 979 (Admin) [2011] Env. L.R. 6, at [22]. Although the statutory context of that case was different, we consider that the view expressed by Judge Pelling at [22] does support our conclusion that work confined to demolition does not constitute work of redevelopment for the purposes of Paragraph (c).

Our third general point is that the intention referred to in Paragraph (c) must be an intention to redevelop all or part of the land to which the code agreement relates or any neighbouring land. The requirement is for redevelopment of land. This is material because “land” is defined in Paragraph 108(1) not to include ECA. We accept however that this definition does not necessarily mean that any work done to the ECA on a particular site, including work to the relevant mast or tower, cannot qualify as redevelopment work. We have already stated our view that the concept of redevelopment implies some kind of change in the land which is the subject of the redevelopment, so that what was there before is replaced by something new. Consistent with this view it seems to us that Mr Watkin was right to submit that the taking down of one mast and the construction of another mast is capable of constituting work of redevelopment. The land is changed and can, in our view, be described as redeveloped where one mast is taken down and replaced by a new mast. That such work can qualify as work of redevelopment appears to have been accepted by the Tribunal in EE Ltd v Chichester, although it is not clear in that case that there was any argument on the point. It will however be noted that, in the conclusion which we have just expressed, we are referring to a case where one mast is taken down and a new mast is erected on the same land.

With these broad principles in mind, we turn to the Claimed Works and the individual Items. We start with the work done on the Orange Site which constitutes Items (i), (ii), (iii) and (v). With the exception of Item (v), we conclude that all of this work qualifies as work of redevelopment, assuming that it otherwise falls within the terms of Paragraph (c). So far as this work has already been done, it seems to us clear that this work is properly described as the redevelopment of the Orange Site. A new concrete base has been installed. New fencing has been installed. The New Tower has been erected, together with the installation of associated infrastructure comprising Passive ECA. We exclude Item (v), as we assume that this particular Item involved the fitting of the new headframe to the New Tower; that is to say the fitting of Passive ECA to Passive ECA. In our view this work, which has been identified as a separate item within the Claimed Works, does not qualify as work of redevelopment.

So far as Item (iv) is concerned, we accept that the trenching works, if they have to be carried out, qualify as works of redevelopment, given that they involve the creation of new service routes within the remainder of the Field. We say this however on the basis that these works can be treated as a part of the redevelopment of the Orange Site. If these works are taken in isolation it seems to us that they are not correctly described as works of redevelopment. They only become such if they can be treated as part of the work of redevelopment of the Orange Site.

This leaves Items (vi) and (vii). We start with Item (vi). Can the removal of the Masts or either of the Masts qualify as work of redevelopment? If the work of removal of the Masts is considered in isolation, it seems to us that it cannot constitute work of redevelopment, given that it is common ground that the mere removal of a mast cannot qualify as work of redevelopment. The Respondents argue however that the work of removal of the Masts can qualify as work of redevelopment because this work forms part of the same scheme of redevelopment as Items (i) to (v) and can thus be treated, in the case of each of the Vodafone Site and the MBNL Site, in the same category as work comprising the demolition of one mast and the erection of a new mast, which we have accepted does qualify as redevelopment.

We accept that if the removal of the Masts can be seen as part of the same scheme of redevelopment as the work on the Orange Site comprising Items (i) to (v), then the removal of the Masts does qualify as work of redevelopment. On this hypothesis the removal of the Masts is not isolated work of demolition, but part of a scheme of demolition and reconstruction.

This however assumes that the hypothesis is correct. In our view, the question of whether works of demolition, which would not otherwise qualify as works of redevelopment for the purposes of Paragraph (c), can be treated as part of a scheme of redevelopment is a fact sensitive one, which depends upon the relationship between the work of demolition and the work of reconstruction. An obvious example of a sufficient relationship between the two is a scheme of redevelopment where one building is demolished, so that a new building can be erected on the same site. The further one moves from this direct relationship, the more difficult it may be to find the required relationship between the work of demolition and the work of construction.

Coming to the present case, we do not think that the required relationship exists. The demolition of the Masts seems to us to be more or less entirely separate from the work of construction on the Orange Site. There is no physical relationship between the two sets of works. The demolition of the Masts was not part of the work of construction of the New Tower and, in physical terms, there was no necessity to demolish the Masts in order to enable the construction of the New Tower. All this may be said to be borne out by the fact that the work of construction of the New Tower on the Orange Site has already been completed, while the Masts have remained in place. The only link which exists between the work on the Orange Site and the demolition of the Masts is the planning link. Given our conclusions on the planning issues, there is a planning requirement that the Masts be removed, as a condition of the Prior Approval. In our view however this planning link is insufficient, in itself, to create the required relationship between what we have accepted were works of redevelopment on the Orange Site and the demolition of the Masts. In our view, and on the particular and, it may be said, unusual facts of the present case, the demolition of the Masts is not correctly seen as part of the same scheme of redevelopment as the work on the Orange Site.

We therefore conclude that Item (vi), namely the removal of the Masts, does not qualify as work of redevelopment within the meaning of Paragraph (c). This is because, in our view, the removal of the Masts from the Vodafone Site and the MBNL Site falls to be treated as a separate set of works, or indeed as two separate sets of works, which do not qualify in and of themselves as redevelopment works.

It will be appreciated that this conclusion has significant consequences for the Respondents’ case on Paragraph (c). It means that Icon cannot demonstrate an intention to redevelop the Vodafone Site because, even if it is assumed that the remaining requirements in Paragraph (c) are satisfied in relation to Item (vi), the work of removal of the Masts cannot qualify as work of redevelopment. The work of removal of the Masts does not qualify as part of a wider scheme of redevelopment, for the reasons which we have explained, and, taken on its own, does not qualify as work of redevelopment.

This leaves Item (vii). We cannot see that Item (vii) qualifies as work of redevelopment, within the meaning of Paragraph (c). Item (vii) comprises the migration of the Active ECA from, respectively, the Vodafone Site and the MBNL Site to the Passive ECA on the Orange Site and/or, depending upon the requirements of the operators who may be using the New Tower, the installation of new Active ECA on the Passive ECA on the Orange Site. In either event, all that is happening is that the relevant transmission equipment comprising the Active ECA is being imported on to the Passive ECA on the Orange Site. We cannot see that this work of attachment of Active ECA to Passive ECA can legitimately be described as redevelopment work, within the meaning of Paragraph (c). Nor do we consider that such work can qualify as redevelopment work on the basis that it can be regarded as part of the work of redevelopment within Items (i) to (iii). It seems to us that the installation of Active ECA on Passive ECA is fundamentally different to the demolition of a mast in order to enable the construction of a new mast. In the latter case there is a change to the relevant land. In the former case all that changes is that apparatus comprising Active ECA is attached to Passive ECA.

Drawing together all of the above analysis, we arrive at the following conclusions on the first of the two interlinked issues which we are considering in this part of our decision; namely whether the Claimed Works constitute works of redevelopment of land, within the meaning of Paragraph (c):

We can now return to the overall question which we have been considering in this part of our decision; namely whether the Claimed Works constitute redevelopment of all or part of the land to which the code agreement relates or any neighbouring land, within the meaning of Paragraph (c). On the basis of our consideration of the two interlinked issues contained within this question, as set out in this part of our decision, our overall answer to this question can be summarised as follows:

Is there a time limit within which Icon must intend to carry out the Claimed Works?

In the case of Paragraph (f) the law is that the landlord must intend to commence the relevant works within a reasonable time of the termination of the current tenancy; see the judgment of Lloyd LJ in London Hilton Jewellers Ltd v Hilton International Hotels Ltd [1990] 1 EGLR 112, at 114D-E. The date of termination of the current tenancy is controlled by Section 64 of the 1954 Act. Where an application to court has been made pursuant to Section 24 or Section 29 of the 1954 Act, following the giving of a notice to terminate the tenancy, Section 64 continues the current tenancy until three months after the date on which the application is finally disposed of, provided that this date falls after the date of termination specified in the relevant notice of termination. What constitutes a reasonable time after the termination of the current tenancy is a fact sensitive question. There is no fixed time limit; see the discussion of this question in Reynolds and Clark, Renewal of Business Tenancies (Sixth Edition) at 7-213 to 7-215.

The Respondents argued that there was no equivalent time limit in Paragraph (c). As the Respondents’ counsel pointed out, the intention which must be proved in the case of Paragraph (f) is an intention to carry out the relevant works “on the termination of the current tenancy”. There are no equivalent words in Paragraph (c). Rather, what has to be demonstrated is that the redevelopment cannot reasonably be carried out unless the code agreement comes to an end. In addition to this, the Code does not specify a termination date for the relevant code agreement. The notices of termination in the present case, served pursuant to Paragraph 31, specified 10^th March 2025 as the date on which Icon wished to bring the 2003 Agreement to an end. As the Respondents’ counsel explained however, Part 6 of the Code contains further provisions which govern the process of requiring the removal of ECA from land. The right of removal has to be exercised in accordance with the procedure in Paragraph 40. We note that the procedure in Paragraph 40 is not necessarily straightforward. We also note that the procedure is not subject to a fixed time limit, and is capable of becoming drawn out.

There is considerable force in these points, but we are not persuaded that there is no time limit in Paragraph (c), for the carrying out of the relevant works of redevelopment. If there was no such time limit it would, in theory, be possible for a site provider to point to an intention to do works of redevelopment at a point well in the future. It is true that the intention would have to be proved at the time when it came to be determined by a tribunal whether the intention existed. It is also true that, if the alleged intention was to carry out works at a point a long way in the future, this would no doubt be relied upon to call into question whether the intention actually existed. Nevertheless, it remains the case that a site provider would not be subject to any restriction, in terms of the timetable for commencement of the relevant works. There would be nothing to stop a site provider claiming an intention to carry out works of redevelopment ten or more years in the future. As a matter of evidence, it might be difficult to prove such an intention, but there would be nothing to prevent the site provider putting forward such a case.

Equally, the absence of any time limit would cause problems for the tribunal called upon to assess whether the relevant intention exists. The existence of a time limit requires the site provider, in order to prove the required intention, to address the question of the timetable for the relevant work. The presence or absence of a realistic timetable is an important indicator, in the case of Paragraph (f), as to whether the relevant intention exists. If however there is no time limit in the case of Paragraph (c), the importance of this indicator is undermined. In practical terms, it seems to us to make the question of whether the required intention exists harder to decide if there is no restriction on when the relevant work has to begin.

We also take into account the language of Paragraph (c) itself. Paragraph (c) requires the site provider to demonstrate that the relevant redevelopment work cannot be carried out without the code agreement coming to an end. In our view it is implicit in this requirement that the intention is to commence the relevant work within a reasonable time of the code agreement coming to an end.

Any such reasonable time will have to take account of the time likely to be required to secure the removal of the ECA from the relevant land, but subject to that and any other such consideration, it seems to us that there is a requirement that the relevant work must be commenced within a reasonable time of the code agreement coming to an end. What that reasonable time is in any particular case is a fact sensitive question, but we do not consider that it is open to the site provider to allege an intention to carry out the relevant work at any point in the future, however distant from the termination of the code agreement. The time between the termination of the code agreement and the intended commencement date of the relevant work must be a reasonable one.

We therefore conclude that there is a time limit within which Icon must intend to carry out the Claimed Works. Icon must demonstrate that it intends to commence the Claimed Works within a reasonable time of the 2003 Agreement coming to an end.

Can Icon intend to do works, within the meaning of Paragraph (c), which it has already carried out?

There was no dispute between the parties as to what is required to prove an intention under Paragraph (c). It was common ground that the test of intention is the same as applies in the case of Paragraph (f). The test is very well-known and has been restated many times. There are two parts to the test, as it applies to Paragraph (c). The first part of the test is subjective. The site provider has to prove a firm and settled intention to carry out the relevant work of redevelopment, which is not likely to be changed. The second part of the test is objective. The site provider has to prove a reasonable prospect of being able to bring about the relevant redevelopment by their own act or volition.

The two part test of intention derives from the decision of the Court of Appeal in Cunliffe v Goodman [1950] 2 KB 237. The case was actually concerned with the question of whether an intention existed for the purposes of the second limb of Section 18(1) of the Landlord and Tenant Act 1927, but it is accepted that the test of intention established by that case is equally applicable to the test of intention in Paragraph (f). In his judgment Asquith LJ stated the test of intention in the following terms, at page 253 of the report:

“The question to be· answered is whether the defendant (on whom the onus lies) has proved that the plaintiff, on November 30, 1945 "intended" to pull down the premises on this site. This question is in my view one of fact. If the plaintiff did no more than entertain the idea of this demolition, if she got no further than to contemplate it as a (perhaps attractive) possibility, then one would have to say (and it matters not which way it is put) either that there was no evidence of a positive "intention," or that the word "intention" was incapable as a matter of construction of applying to anything so tentative, and so indefinite. An "intention" to my mind connotes a state of affairs which the party "intending" - I will call him X – does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.”

Asquith LJ then went on to make the following useful observations on the second part of the test, also on page 253 of the report:

“X cannot, with any due regard to the English language, be said to "intend" a result which is wholly beyond the control of his will. He cannot "intend" that it shall be a fine day tomorrow : at most he can hope or desire or pray that it will. Nor, short of this, can X be said to "intend" a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents and cross-currents of circumstance that, not merely is it quite likely not to be achieved at all, but, if it is achieved, X.'s volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence. If there is a sufficiently formidable succession of fences to be surmounted before the result at which X aims can be achieved, it may well be unmeaning to say that X "intended" that result.”

It initially appeared to be common ground between the parties that, as with Paragraph (f), the relevant intention, for the purposes of Paragraph (c) has to be proved at the date of determination of the question of whether the relevant intention does exist. This date is often referred to as the date of the relevant hearing held to determine whether the intention exists but it is, strictly, the date on which this question comes to be determined by the relevant court or tribunal; see the speech of Lord Denning in Betty’s Cafes Ltd v Phillips Furnishing Stores Ltd [1959] AC 20, at page 51 of the report. In the remainder of this decision we will refer to this date, on which the existence of the intention has to be demonstrated, as “the Decision Date”.

Our reference to common ground in our previous paragraph is qualified, because in opening Mr Watkin materially qualified his position. With, we do not doubt, one eye on this issue of whether a party can intend, within the meaning of Paragraph (c), to do works which it has already carried out, Mr Watkin submitted that if the intention to do works, which had been carried out, had previously existed, we should interpret Paragraph (c) as permitting such an intention or such works to fall within the terms of Paragraph (c).

The answer to the question of whether Icon can intend to do works, within the meaning of Paragraph (c), which it has already carried out seems to us to be straightforward. Where a person intends to do something, the relevant thing is to be done in the future. A person cannot intend to do something which has already happened. The concept is an impossible one. This is reflected, as it had to be, in the language used by Asquith LJ to formulate his test of intention. All of that language looks to the future. An intention:

“to my mind connotes a state of affairs which the party "intending"- I will call him X – does more than merely contemplate : it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.”

It seems to us that this language rules out the concept of an intention to carry out works which have already been completed by the Decision Date.

The Respondents’ counsel argued that there is a material difference between Paragraph (f) and Paragraph (c) in this respect. Paragraph (f) is necessarily prospective because it relates to works on the relevant demised premises to be carried out on the termination of the current tenancy. In these circumstances there is no question of an existing but incomplete set of works being obstructed by the relevant tenancy. The intention referred to in Paragraph (f) is necessarily a prospective one. Paragraph (c) is more generously worded, and requires a consideration of the whole scheme of redevelopment, regardless of whether part of the scheme has already been carried out. We were urged to give Paragraph (c) a purposive construction, consistent with the policy behind Paragraph (c); namely not allowing Code rights to inhibit redevelopment. In this respect we were referred to the approach identified by Lady Rose JSC in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, which we have quoted above, but repeat for ease of reference:

“106 In light of Lord Nicholls’ and Lord Mustill’s comments, with which I respectfully agree, the starting point here is not to try to define the word “occupier” and then allow that definition to mandate how the regime established by the code works. The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word “occupier” so as best to achieve that goal.”

As this argument was developed, the Respondents’ counsel pointed to various reasons why the removal of the Masts from the Vodafone Site and the MBNL Site had to be treated as part of the overall redevelopment scheme in relation to the Steps Hill Sites, including the fact that Icon was obliged, by reason of the planning position, to take down the Masts as part of, and as a condition of the work of constructing the New Tower. In considering what was intended, so it was submitted, it was wrong to exclude that part of the redevelopment work which had already been done.

In oral closing submissions Mr Watkin gave us some examples to illustrate and support these arguments. He referred us to the construction of a house on code agreement land. If the construction of the house was complete, but for the tiles on the roof, and if the code agreement prevented the tiles being put in place, the site provider still intended to carry out a redevelopment within the policy and meaning of the Code, even if it was only the roof tiles which required the termination of the Code rights. Mr Watkin also gave us the example (supplied by Mr Clark) of a marathon runner embarking on the last mile of a marathon. At the beginning of that last mile, so it was submitted, the marathon runner still intends to run the marathon. The marathon runner does not intend to run a single mile.

We are not able to accept any of the Respondents’ arguments on this particular question. We say this for the following reasons.

First, the basis of these arguments is that the work of removal of the Masts can and should be treated as part of an overall scheme of redevelopment in relation to the Steps Hill Sites. We have however already decided, in the relevant earlier section of this decision, that the work of removal of the Masts cannot be treated as part of what we have accepted were works of redevelopment on the Orange Site. As such, the argument that the required intention exists, because the removal of the Masts constitutes the last stage of on overall redevelopment scheme in relation to the Steps Hill Sites, cannot get off the ground.

Second, and even if we are wrong to treat the work of removal of the Masts as separate to the redevelopment works on the Orange Site, the Respondents’ arguments still seem to us to suffer from a further difficulty; namely that they conflict with the plain wording of Paragraph (c). Paragraph (c) requires that the site provider intends to redevelop all or part of the land to which the code agreement relates, or any neighbouring land. Such an intention to redevelop cannot exist in relation to works of redevelopment which have already been carried out. A person cannot intend to do that which has already been done. Even if one assumes, as we are assuming for current purposes, that Item (vi) can all be treated as part of an overall scheme of redevelopment with the works of redevelopment on the Orange Site, it remains the case that Icon does not intend to do any work of redevelopment on the Orange Site. The only work outstanding on the Orange Site is Item (vii), which comprises the installation of Active ECA on the Passive ECA on the Orange Site. We have however already concluded that Item (vii) does not constitute work of redevelopment. So far as the remainder of the Field is concerned, there is Item (iv), if this Item otherwise falls within the terms of Paragraph (c). In the case of the Vodafone Site and the MBNL Site there is Item (vi), the removal of the Masts, again assuming that this work otherwise falls within the terms of Paragraph (c).

Assuming that the Respondents can demonstrate that Icon has the required intention to carry out the works which have yet to be done, that is to say Items (iv), (vi) and (vii), we cannot see how the remainder of the Claimed Works can be treated as any part of this intention, simply because it is or may be possible to describe them as being part of the same scheme of redevelopment. Icon cannot intend to carry out works which it has already carried out. It can only intend to redevelop, within the meaning of Paragraph (c), in respect of the works which remain to be carried out, assuming that those works are the subject of the required intention and assuming that those works, in and of themselves qualify as works of redevelopment. We are not convinced that Mr Watkin’s examples are the right way to analyse this particular question. We prefer simply to apply the plain language of Paragraph (c), together with the requirement that the required intention must be proved to exist at the Decision Date, not at any earlier date. For what it is worth however, it seems to us that both the examples provided by the Respondents’ counsel bear out our conclusion on this point. A site provider does not intend to construct a house, in circumstances where all that has to be done is the installation of the roof tiles. If an intention exists, it is an intention to install the roof tiles. Equally, a marathon runner embarking on the last mile of the marathon does not intend to run a marathon. As a matter of plain language it seems to us that the marathon runner is correctly described as intending to run the last mile of the marathon. As it happens, we have already decided that the removal of the Masts is not correctly treated as the last mile of the marathon, or any part of the marathon, but even if we are wrong in that earlier conclusion, there remains only the intention to run that last mile.

We can also see no reason of policy or anything relating to the working of the Code which justifies overriding the plain wording of Paragraph (c) in this respect even if, which we doubt, it would be permissible to do so. Paragraph (c) uses the word “intends”. We cannot see anything relating to the working of the Code which suggests that giving this word its normal meaning undermines the circumstances in which this particular ground of termination is intended to be available.

We therefore conclude, in answer to this question, that Icon cannot intend to do works, within the meaning of Paragraph (c), which it has already carried out.

This conclusion also has significant consequences for the Respondents’ case on Preliminary Issue (c). It means that Icon cannot demonstrate the required intention to redevelop in relation to Items (i) to (iii), or in relation to Item (v) if, contrary to our earlier conclusion on this point, Item (v) qualifies as work of redevelopment.

The consequences go further than this. We find it convenient to put Item (iv) to one side for present purposes. This leaves Item (vi), the removal of the Masts from, respectively, the Vodafone Site and the MBNL Site. It is however common ground between the parties that the removal of a mast, taken in isolation, cannot constitute work of redevelopment within the meaning of Paragraph (c). We have also reached the same conclusion by our own reasoning. We have also decided that Item (vi) cannot be treated as part of the same set of works as the work of redevelopment on the Orange Site, which has the consequence that the Respondents’ arguments on intention cannot get off the ground.

If however we are wrong in our earlier conclusion, and if we assume that the required relationship exists between the removal of the Masts and the works on the Orange Site, we do not consider that this resolves the problem that the works on the Orange Site have already been done. In circumstances where the works of redevelopment on the Orange Site have been carried out, it seems to us that the Respondents are back to a position where the removal of the Masts has to be considered in isolation. We do not think that the removal of the Masts can be constituted work of redevelopment by virtue of the relationship which we are assuming, for these purposes, to exist between the removal of the Masts and the redevelopment of the Orange Site. We do not think that this is the correct analysis. What matters for the purposes of Paragraph (c) is what the site provider intends. If all that the site provider can be said to intend is the removal of the Masts, it seems to us that this is not work of redevelopment within the meaning of Paragraph (c). Treating it as work of redevelopment because it forms the tail end of a scheme of redevelopment seems to us to be allowing, by the back door, the inclusion of the work already done in the work which is intended. Equally, this seems to us to involve a failure to respect the requirement that the intention must be proved to exist at the Decision Date. In our view, the position is the same under Paragraph (c) as it is under Paragraph (f). The required intention must be proved to exist at the Decision Date. We do not accept Mr Watkin’s argument that the date on which the intention must be proved is flexible under Paragraph (c). It seems to us that if it had been intended that Paragraph (c) should include an intention which previously existed, but has been put into effect by the carrying out of the intended works, Paragraph (c) could easily have said this. Equally, it is reasonable to assume that those responsible for the drafting of the Code would have appreciated the need to spell this out, not only as a matter of language, but in order to differentiate Paragraph (c) from Paragraph (f) in this respect. This was not done.

This leads us to the following conclusions, further to our answer to the question which we are considering in this part of our decision and further to our earlier decision on the status of the work of removal of the Masts:

For what it is worth, it seems to us that our analysis in sub-paragraph (4) of our previous paragraph can be applied to Item (iv), if we are correct in our earlier conclusion that Item (iv) can only qualify as work of redevelopment, within the meaning of Paragraph (c), if it can be treated as part of Items (i) to (iii). Applying the relevant part of our reasoning in relation to Item (vi) in this section of our decision, it seems to us that Item (iv) cannot be so treated. It follows that Icon cannot demonstrate the required intention to redevelop in relation to Item (iv), because the works comprising Item (iv), namely the trenching works, do not constitute work of redevelopment within the meaning of Paragraph (c).

Our reasoning in this section of our decision also renders it unnecessary to decide whether the Respondents could have said that Icon intends to carry out, at the least, work on the Orange Site, namely Items (i) to (iii), which we have accepted constitutes work of redevelopment. As such, the Respondents might have argued that Icon does intend to carry out work of redevelopment, namely Items (i) to (iii), on neighbouring land, but cannot reasonably do so because it is a planning requirement, in relation to these works, that the Masts be removed; meaning that the work of redevelopment on the Orange Site cannot reasonably be done unless the 2003 Agreement comes to an end. This argument is however impossible in circumstances where Items (i) to (iii) have been done, and cannot now be said to be intended by Icon. In these circumstances we do not decide whether this argument, had it been available to the Respondents, would have been correct.

What intention does Icon have?

On the basis of our conclusions thus far, this question does not arise. For the reasons which we have already set out, Icon cannot demonstrate the required intention to redevelop, within the terms of Paragraph (c). This is because Items (i), (ii), (iii) and (v) have already been done, and because Items (iv) to (viii) do not constitute works of redevelopment within the meaning of Paragraph (c).

In case however this case goes further, we will set out, as briefly as possible, our findings on the question of intention, applying the two part test which derives from Cunliffe v Goodman. In this section we consider the question of whether this intention has been proved in relation to the Claimed Works, while leaving to one side the question, which we consider in the next section of this decision, of whether the intention, if otherwise proved to exist, is impermissibly conditional, in the sense used in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62 [2019] AC 249. We also proceed on the basis, contrary to our previous conclusions, that the Claimed Works otherwise fall within the terms of Paragraph (c).

We start with Item (iv). It was clear from Mr Freemantle’s evidence that the position in relation to groundworks for new power and fibre connections to the Orange Site was nowhere near settled. As Mr Freemantle candidly explained, in his evidence in answer to questions from the Tribunal, it was an “open question” whether a new power supply would be required to the Orange Site. The position was the same with a fibre connection. A fibre connection could be brought in “if fibre were needed on site”. Whether a new power supply and/or fibre connection would be required was left up in the air. As we understood the position, the answer to the question of whether this work would be done depended upon the requirements of the operators who came on to the Orange Site. Those requirements are not yet known, because there are not yet any operators on the Orange Site. So far as we can see from the available evidence, Icon would have the ability to lay new power and fibre connections to the Orange Site across the remainder of the Field, in reliance upon the service rights granted by the transfer of the Sites by the Bucks to APW dated 25^th September 2018. This satisfies the second limb of the test of intention, but so far as the first limb is concerned, it is clear, on the evidence that no settled decision has been made, or could be made at this stage, to implement the service works which comprise Item (iv). We therefore find that the Respondents have failed to prove that Icon has, as at the Decision Date, the required intention to carry out the works within Item (iv).

So far as Items (i), (ii), (iii) and (v) are concerned, it is clear that Icon had the intention to do these works. To state the obvious, they have been done. We add two equally obvious but important points. The first point is that this intention cannot now exist, because the relevant work has all been completed. The second point is that the required intention has to be proved to exist at the Decision Date. In the case of Items (i), (ii), (iii) and (v), a finding that the required intention had been proved would be in direct conflict with the rule of law that the required intention must be proved to exist at the Decision Date.

We take Item (vi) next assuming, contrary to our conclusion in the previous section of this decision, that the removal of the Masts constitutes work of redevelopment. In Paragraph (f) cases it is usually the case that a corporate landlord seeks to satisfy the first part of the test by producing an appropriate resolution which evidences the decision of the landlord to proceed with the relevant works. There was no evidence of that kind in the present case. We do not regard such evidence as essential in the present case, for two reasons.

First, our conclusions on the planning issues mean that Icon is under an effective obligation to remove the Masts. Icon is not in a position where it is at liberty to make up its own mind whether to remove the Masts or not. This is some evidence to support the Respondent’s case that Icon has made the subjective decision to remove the Masts.

Second, and in our view of more importance, is all the evidence which we have heard both in relation to the business model of the Respondents and in relation to the commercial realities of the situation. We refer, in particular, to the evidence of Mr Kay and Mr Freemantle. In his evidence Mr Kay explained Icon’s business model and commercial objectives. As he put matters, Icon’s new infrastructure on the Orange Site had been designed with a clear engineering methodology, which was intended to be able to accommodate all four MNOs currently using the Vodafone Site and the MBNL Site, and to be capable, shareable and adaptable. Mr Freemantle confirmed in his evidence that the New Tower had been designed to accommodate at least four operators, with the capacity for upgrades to the existing Active ECA on the Vodafone Site and the MBNL Site. In their evidence the telecommunications experts also confirm the capacity of the New Tower, although we note that they are not agreed on how commercially attractive the New Tower will be to other potential users.

The commercial objectives behind the construction of the New Tower emerged quite clearly from the evidence referred to in our previous paragraph and from the evidence generally. The New Tower is designed to accommodate the four MNOs which currently use the Vodafone Site and the MBNL Site, at rents which we assume to be more advantageous to Icon. It is quite clear from the evidence that what Icon is seeking to achieve, in relation to the Sites, is a situation where the Vodafone Site and the MBNL Site are decommissioned, thereby compelling Vodafone, Telefonica, H3G and EE to migrate to the Orange Site. Indeed, if this was not the intention of Icon, the Respondents’ investment in the construction of the New Tower on the Orange Site would make little commercial sense. If this investment is to be repaid, operators must be brought to the New Tower, which has been constructed with the intention that it should have plenty of spare capacity for additional operators to join the Orange Site. This commercial objective is, at the least, much more likely to be realised if there is no competition from the Masts. In these circumstances it seems quite clear to us from the evidence, and we so find, that Icon has demonstrated a decision to proceed with the removal of the Masts.

So far as the second objective part of the test of intention is concerned, there is nothing in the evidence, including the evidence of the telecommunications experts, to suggest that there is any practical or legal obstacle to the removal of the Vodafone Mast, beyond the existence of the 2003 Agreement. We find that Icon has a reasonable prospect of implementing the removal of the Vodafone Mast within a reasonable time of the termination of the 2003 Agreement (assuming termination). So far as the MBNL Site is concerned, and so far as this matters, the position is not quite so straightforward. The evidence is that a notice was served on Icon by MBNL, acting as agent for H3G, pursuant to Paragraph 33 seeking renewal of the code agreement for the MBNL Site. The future timetable is uncertain, but it has to be kept in mind that we are assuming, in our answer to this question, that the removal of the Masts and each of them constitutes work of redevelopment falling with Paragraph (c). As such, and bearing in mind the drawn out process which applies to the termination of the 2003 Agreement (assuming a right of termination), it seems to us reasonable to make the finding, as we do, that Icon has a reasonable prospect of implementing the removal of MBNL Mast within a reasonable time of the termination of the 2003 Agreement (again assuming termination).

We therefore find that if, contrary to our previous conclusion, the removal of the Masts qualifies as work of redevelopment within the meaning of Paragraph (c), the Respondents have proved that Icon has, as at the Decision Date, the required intention to carry out the works within Item (vi).

This leaves Item (vii) which, as we have also concluded, comprises work which does not qualify as work of redevelopment within the meaning of Paragraph (c). In relation to Item (vii), in particular, we heard a good deal of argument and evidence as to whether Vodafone or any of the other MNOs using the Vodafone Site and the MBNL Site would be prepared to migrate to the Orange Site, if the Masts were removed. As matters have turned out, this is not an issue which directly arises, for two reasons.

First, and as we have already concluded, Item (vii) does not comprise work of redevelopment for the purposes of Paragraph (c).

Second, it seems to us that the question of intention is effectively redundant for a different reason, which renders it unnecessary to consider the two part test of intention in relation to Item (vii). When it comes to installation of Active ECA on the New Tower we have heard no evidence that this work would actually be carried out by Icon or by any party acting as an agent of Icon, or by a contractual arrangement with a third party which would permit Icon to say that it was doing the work for the purposes of Paragraph (c). We assume that each operator moving to the New Tower would make its own arrangements for the installation of its Active ECA on the New Tower. On the evidence, the position is uncertain. This is not surprising, given that there is no way of knowing precisely when and in what circumstances and pursuant to what arrangements any particular operator would move to the Orange Site. Given this position, it seems to us that the Respondents are not able to prove that Icon has the required intention to carry out the works within Item (vii), because there is no evidence that Icon will, either directly or indirectly, be carrying out those works.

So far as concerns the question of whether Vodafone or any of the other MNOs would migrate to the New Tower, if the Masts were removed, we will briefly express our views. The Respondents’ counsel drew our attention to the decision of Vos J (as he then was) at first instance in Humber Oil Terminals Trustee Ltd v Associated British Ports [2011] EWHC 20243 (Ch), as authority for the point that a landlord may rely on predicted actions of their tenant, in establishing that there is a reasonable prospect of achieving a particular result. In Humber Oil Vos J found that the tenant, following the termination of its leases of parts of the Immingham Oil Terminal on the Humber Estuary, would have negotiated new terms with its landlord for the use of the relevant facilities. The Respondents’ counsel submitted that the position was the same in the present case, and that “once all the posturing is over” (to use the language of Vos J in his judgment at [122]) the MNOs, including Vodafone, could be expected to agree terms with Icon for their use of the New Tower.

So far as the MNOs other than Vodafone who are using the Masts are concerned, we are not able to say what they would do. In closing submissions Mr Watkin argued that we were entitled to infer, from the available evidence, that other MNOs would wish to stay in the location. Mr Watkin also submitted that Vodafone could have called evidence from the other MNOs, but had not done so. It was submitted that we could infer from this that Vodafone was seeking to insinuate that there were difficulties with the other MNOs migrating to the New Tower, without being able to demonstrate this by evidence.

We were not persuaded by these arguments, in the case of the MNOs other than Vodafone. The burden of demonstrating that there is a reasonable prospect that the other MNOs would migrate to the New Tower, in the event of the removal of the Masts, lies upon the Respondents. This is simply a function of the burden which is upon the Respondents to prove that Icon has the required intention for the purposes of Paragraph (c). We have heard no evidence from any of the other MNOs. We do not know their particular circumstances, or requirements, or commercial options if the Masts were to become unavailable. We do not consider that we are able, on the available evidence, to make a finding that there would be a reasonable prospect of the other MNOs moving to the New Tower, if the Masts were removed.

This leaves Vodafone itself. Here, the position is different. In the case of Vodafone there was evidence from Mr Yorston that Icon’s conduct had called into question whether Vodafone would wish to engage with Icon moving forward. There was also evidence from Vodafone that it had no need of an upgrade to the facilities provided by the Vodafone Mast. We are however, in the case of this particular issue, required to consider a scenario in which the Masts are to be removed, leaving the New Tower as the only existing option, in terms of mobile communications sites in this location. On this hypothesis it seems to us that the most likely outcome would be that Vodafone would agree terms with Icon for the use of the New Tower and would migrate from the Vodafone Site. On this hypothesis we find that there would be a reasonable prospect of Icon achieving this result. We also consider that the position would be the same if one assumes a situation where only the Vodafone Mast was to be removed. We heard no evidence to support the case that Vodafone relocating to the MBNL Site would be a realistic option.

This completes our analysis of the question of what intention Icon has. We do not state our conclusions on the analysis at this stage. This is because we have yet to consider the question of whether the required intention, so far as it has been proved to exist, is impermissibly conditional. We now turn to that question.

Is Icon’s intention impermissibly conditional?

This question arises by reason of the decision of the Supreme Court in Franses. Franses was, on its facts, an unusual case. The case was concerned with an application for a new tenancy of business premises by the tenant, pursuant to the relevant provisions of the 1954 Act. The landlord opposed the application in reliance upon Paragraph (f). The scheme of works relied upon by the landlord went through several iterations. The key feature of the scheme was that it had no practical utility. If the works were carried out, the refitted premises could not be used without the grant of planning permission for a change of use. The landlord’s evidence was that it was prepared to run the risk that the premises would be left incapable of use as a result of the works, because the purpose of the works was to obtain vacant possession of the premises from the tenant. Put more simply, the works were designed to satisfy Paragraph (f). The judge at first instance (His Honour Judge Saggerson) found that the landlord genuinely intended to carry out the works if they were necessary in order to get rid of the tenant, but that the landlord did not intend to carry out the works if it were not necessary to do so for that purpose. In other words, the landlord did not intend to carry out the works if the tenant left voluntarily or if it turned out that the works could be done pursuant to a right of entry in the tenancy.

What is unusual about Franses is that the landlord’s principal witness appears to have been unusually candid in admitting that the scheme of works had been designed to satisfy Paragraph (f). It is not unusual, in a Paragraph (f) case, for the genuineness of the landlord’s intention to be challenged on the basis that the relevant scheme of works is said not to make financial sense or to have no proper commercial purpose. It is however unusual for it to be quite so clear, on the evidence, that the relevant scheme is an artificial one, which will only proceed if it is necessary to satisfy Paragraph (f).

At first instance and on appeal to the High Court (Jay J), the landlord’s intention was held to be sufficient. The Supreme Court, which heard the case on a leapfrog appeal, disagreed, holding that the landlord’s intention was impermissibly conditional. The essential reasons for this conclusion were expressed by Lord Sumption JSC in his judgment in the following terms, at [19]:

“19

I respectfully disagree. The problem is not the mere conditionality of the landlord’s intention, but the nature of the condition. Section 30(1)(f) of the Act assumes that the landlord’s intention to demolish or reconstruct the premises is being obstructed by the tenant’s occupation. Hence the requirement that the landlord “could not reasonably do so without obtaining possession of the holding”. Hence also the provision of section 31A that the court shall not hold this requirement to have been satisfied if the works can reasonably be carried out by exercising a right of entry and the tenant is willing to include a right of entry for that purpose in the terms of the new tenancy. These provisions show that the landlord’s intention to demolish or reconstruct the premises must exist independently of the tenant’s statutory claim to a new tenancy, so that the tenant’s right of occupation under a new lease would serve to obstruct it. The landlord’s intention to carry out the works cannot therefore be conditional on whether the tenant chooses to assert his claim to a new tenancy and to persist in that claim. The acid test is whether the landlord would intend to do the same works if the tenant left voluntarily. On the facts found by Judge Saggerson, the tenant’s possession of the premises did not obstruct the landlord’s intended works, for if the tenant gave up possession the landlord had no intention of carrying them out. Likewise, the landlord did not intend to carry them out if the tenant persuaded the court that the works could reasonably be carried out while it remained in possession. In my judgment, a conditional intention of this kind is not the fixed and settled intention that ground (f) requires. The answer would be the same if what the landlord proposed was a demolition, conditionally on its being necessary to obtain possession from the court.”

We do not regard it as necessary to address the question of whether Icon’s intention is impermissibly conditional in relation to the bulk of the Claimed Works. So far as Items (i), (ii), (iii) and (v) are concerned, the work has been done and questions of impermissible conditionality do not arise. So far as Item (iv) is concerned the Respondents have failed to prove the required intention, independent of questions of impermissible conditionality. So far as Item (vii) is concerned, the Respondents have also failed to prove the required intention, independent of questions of impermissible conditionality. In these circumstances it seems to us that it is neither necessary nor appropriate to consider questions of impermissible conditionality in relation to an intention which, on the facts, has not been proved to exist.

This leaves Item (vi); the removal of the Masts. Although we heard a great deal of evidence and argument on the question of impermissible conditionality in the course of the Trial, we do not regard this question either as a difficult question to answer or as a question requiring extensive analysis of the evidence. We say this for essentially the same two reasons as we have previously relied upon, in finding that the Respondents have proved the required intention on the part of Icon, as at the Decision Date, if it is assumed (contrary to our earlier conclusion) that the removal of the Masts constitutes work of redevelopment within the meaning of Paragraph (c).

First, there are our conclusions on the planning issues. As we have already noted, Icon is not in a position where it is at liberty to make up its own mind whether to remove the Masts or not. Icon is subject to an effective obligation to remove the Masts, with or without the 2003 Agreement in place.

Second, there is the evidence which we have heard, both in relation to the business model of the Respondents and in relation to the commercial realities of the situation. We have summarised our findings on this evidence in the previous section of this decision. As we have found, it is quite clear from the evidence that what Icon is seeking to achieve, in relation to the Steps Hill Sites, is a situation where the Vodafone Site and the MBNL Site are decommissioned, thereby compelling Vodafone, Telefonica, H3G and EE to migrate to the Orange Site. This necessarily requires the removal of the Masts. There is no evidence that Vodafone, or for that matter any of the other users of the Vodafone Site and the MBNL Site would need to move to the New Tower, if the Masts remained in place and available for use. Putting the matter another way, the removal of the Masts is essential to the commercial success of the New Tower. Nor can we see that this position would change if one posits a situation where the users of the Vodafone Site and the MBNL Site all vacated these Sites on a voluntary basis, without making any claims to code rights. On that hypothesis, the commercial success of the New Tower would still depend upon the removal of the Masts because, in order to make the New Tower commercially attractive, Icon would need to ensure that there were no competing masts available in the same area. The New Tower would need to be the only option for an operator wishing to operate from this geographical location.

In closing submissions Mr Radley-Gardner argued that, on the evidence, it was clear that Icon was created as a response to the threat posed by Code rents, which were lower than expected when they came in and threatened the business model of APW, which was to aggregate sites and income streams for investment. The whole point of the exercise was to bring the four MNOs over to the New Tower. The opportunity to achieve that only arose when the opportunity arose to bring an end to the Code agreements. The scheme of work in relation to the Steps Hill Sites was put together in order to checkmate the renewal applications in respect of the Vodafone Site and the MBNL Site. It was submitted that none of the Claimed Works would have been done or would be done, if there had been a voluntary vacation of the Vodafone Site and the MBNL Site and no claim to the renewal of Code rights.

We do not think that the evidence can support Mr Radley-Gardner’s argument. Indeed, it seems to us that this part of Vodafone’s case misses an essential feature of the present case. APW was the owner of all three of the Steps Hill Sites and now, in succession, Icon is the owner of all three of the Steps Hill Sites. In his evidence Mr Kay explained how the Steps Hill Sites were presented to the board of Radius as an opportunity for the construction of a new tower in November 2022. The Prior Approval Application was made in December 2022, and the Prior Approval was granted in February 2023. Vodafone commenced the Renewal Proceedings in March 2023. The original Paragraph 33 notices were served on APW by Vodafone in March 2020, but there does not appear to have been any action taken further to those notices, between March 2020 and November 2022. This timetable does not support the case that APW only conceived the construction of the New Tower as a device to defeat Vodafone’s Code rights, which device would not have been implemented in the absence of those Code rights. Beyond this, it seems to us that there is a more fundamental difficulty with this part of Vodafone’s case. We have already referred to the evidence given by Mr Kay and Mr Freemantle as to the commercial thinking behind the construction of the New Tower. On the basis of this evidence it seems to us, and we so find, that APW would always have been looking to construct a new tower on the Orange Site, and to remove the Masts, regardless of what rights did or did not exist in relation to the Vodafone Site and the MBNL Site. This was what fitted the commercial strategy of APW, and now Icon, to create a new tower, with excess capacity, on to which users wishing to operate in that geographical location could be consolidated, to the commercial advantage of APW and Icon.

It is easy, in the present case, to become caught up in the question of the merits of what the Respondents have done in relation to the Steps Hill Sites. On the one hand, it may be said that the Respondents have, by their conduct of the planning process, engineered a situation where it can be said that the Masts have to be removed as a condition of the construction of the New Tower, thereby putting the Respondents into a position where they can exploit Paragraph (c) in an attempt to defeat Vodafone’s Code rights. It may be said that this is not a legitimate way of proceeding and that a device of this kind should not succeed. On the other hand, it may be said that it is perfectly legitimate for the Respondents to have used their common ownership of the Steps Hill Sites and their lawful use of the planning process to enable the demolition of the Masts and the construction of the New Tower. In our view, and so far as Paragraph (c) is concerned, it is largely irrelevant which of these views is correct, or indeed whether the correct view lies somewhere between these competing scenarios. We do not regard it as necessary to decide what is the correct view. In our view what is important is that the construction of the New Tower was clearly consistent with the commercial objectives of the Respondents, as explained by their witnesses, regardless of whether Code rights existed or did not exist in relation to the Steps Hill Sites.

The test of conditionality, as identified in Franses, was helpfully summarised, in the context of Code rights, in the following terms by the Tribunal in EE v Chichester, at [37]:

“37

Likewise, say the claimants, the respondents cannot satisfy the requirements of para.21(5) if their intention to redevelop is conditional on whether the claimants assert their claim to Code rights. The acid test is whether the respondents would intend to do the same works if the claimants did not seek Code rights.”

In EE v Chichester the case of the landowners ran into serious trouble on the evidence. The Tribunal were not persuaded, on the evidence, that the landowners had a genuine intention to proceed with the scheme of redevelopment which was ultimately placed before the Tribunal. The Tribunal concluded, on the evidence, that the scheme had been put together in response to the claimants’ application for Code rights. In the present case the evidence is very different and points firmly in the opposite direction. Applying Lord Sumption’s “acid test” in the present case, we find that Icon would proceed with the removal of the Masts, even in circumstances where Vodafone was not seeking Code rights and, together with Telefonica, was willing voluntarily to vacate the Vodafone Site.

Drawing together all of the analysis in this and the previous section of this decision, our findings and conclusions are as follows:

Other issues within Preliminary Issue (c)

There are two other issues which were raised in relation to Preliminary Issue (c). Although these issues do not strictly arise for the decision, in the light of our previous conclusions, we deal briefly with them for the sake of completeness.

First, there was some argument from Vodafone, at least in its opening submissions, that in considering whether the Claimed Works could not reasonably be done unless the 2003 Agreement came to an end, we were entitled to take account of a range of considerations. It was also argued, in relation to the question of whether the Claimed Works could not reasonably be done, that we were only concerned with physical impediments to the work on the Orange Site. The argument was that the work on the Orange Site was not in any way obstructed by the presence of the Masts. The work on the Orange Site could, physically, be carried out without the removal of the Masts, as had in fact occurred. It was also argued that the Code was not intended to facilitate what were referred to as “blue on blue” applications; that is to say applications between Code operators. It was also argued that if the position is that Icon is required to remove the Masts as a condition of the Prior Approval, this is a problem which Icon has brought upon itself.

We accept the submission of the Respondents that considerations of this kind are not relevant to the question of whether a site provider can satisfy Paragraph (c). There is no general reasonableness requirement within Paragraph (c), nor any element of discretion. So far as the final part of Paragraph (c) is concerned, the question is simply whether the relevant works cannot reasonably be carried out unless the relevant code agreement comes to an end. The impediments which may be created by the code agreement are not limited to physical impediment. Equally, if there is an impediment created by the existence of the code agreement, it seems to us that it does not cease to be an impediment because it may have come about in a particular way. What matters is whether the impediment, if it exists, cannot reasonably be overcome without the code agreement coming to an end.

Second, it was also argued by Vodafone that Icon had the ability to require the removal of the Vodafone Mast pursuant to the terms of the 2003 Agreement, so that it was not necessary for the 2003 Agreement to be brought to an end in order for Icon to carry out the Claimed Works or any part of them. The provision in question is to be found in paragraph 1.3.2 of the Third Schedule to the 2003 Agreement, and provides as follows:

“1.3.2

on the termination of this Agreement (howsoever caused) the Company will remove the Apparatus and will if required by the Owner reinstate the Site (and any part of the Land used by the Company) to the Owner's reasonable satisfaction having regard to the condition of the Site at the date of this Agreement”

We do not think that this provision can be relied upon for the purposes of Paragraph (c). The obligation to remove the Apparatus arises on termination of the 2003 Agreement. If the 2003 Agreement is not terminated, the obligation does not arise. Nor, as it seems to us, could the obligation be the subject of any effective enforcement if Icon was required to enter into a renewal of the 2003 Agreement. In summary, we do not consider that this provision provides Icon with a means of requiring the removal of the Vodafone Mast, without the 2003 Agreement coming to an end. The present case does not seem to us to fall into that category of cases, under the 1954 Act, where the landlord’s case under Paragraph (f) fails because the landlord has the right to do the relevant work under the terms of the relevant tenancy; see Heath v Drown [1973] AC 498.

Can Icon satisfy Paragraph (c)?

For the reasons which we have given, we conclude that Icon cannot satisfy Paragraph (c). Icon is unable to demonstrate an intention to redevelop, within the meaning of Paragraph (c). In summary, this is because Icon is only able to demonstrate an intention, within the meaning of Paragraph (c), in relation to one part of the Claimed Works; namely the removal of the Masts. The work of removal of the Masts is not however work of redevelopment within the meaning of Paragraph (c). As such, Icon does not have an intention to redevelop, within the meaning of Paragraph (c).

Preliminary Issue (c) - conclusion

Our conclusion on Preliminary Issue (c) is that Icon cannot rely on Paragraph (c). For the reasons which we have stated, the Respondents have failed to demonstrate that Icon can satisfy the requirements of Paragraph (c). Accordingly, Paragraph (c) is not engaged.