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

At this point we set out a brief summary of the issues to be determined within the Preliminary Issues. This brief summary is an essential introduction to the matters we have to determine in relation to each of the Preliminary Issues. At the outset of the Trial we asked counsel to provide us with an agreed list of issues or, in the absence of an agreed list of issues, rival lists of issues. We were provided with an agreed list of the planning issues; that is to say the issues arising in relation to the meaning and effect of the Prior Approval. So far as the overall list of issues was concerned, agreement could not be reached, and we were provided with rival lists of issues. While it was unfortunate that agreement could not be reached, the rival lists of issues were helpful. We have framed our analysis of the Preliminary Issues by reference to these rival lists of issues, and by reference to the agreed list of planning issues. We stress that what follows is a brief summary of the issues, which is not intended to enumerate everything which appears in the lists of issues. All of the issues identified in the lists of issues are dealt with, as necessary, in our analysis of the Preliminary Issues.

So far as Preliminary Issue (a) is concerned, the Respondents’ case is that the arrangements between Vodafone and CTIL in relation to the Vodafone Site constituted a sharing of its rights under the 2003 Agreement (the Rights) with CTIL, without the consent of the owners of the Vodafone Site, in breach of the Alienation Clause. As pleaded in the Termination Proceedings, the Respondents’ case was that Vodafone had transferred or shared its rights in relation to the Vodafone Site with CTIL. In closing submissions the Respondents accepted that there had been no transfer of rights, but maintained their case on the sharing of rights such that, so it is alleged, the correct analysis is that CTIL is the party in occupation of the Vodafone Site, making use of the Vodafone Site for its own business, with Vodafone and Telefonica as its effective customers.

The Respondents’ case is that these breaches of the Alienation Clause constituted substantial breaches by Vodafone of its obligations under the 2003 Agreement, within the meaning of Paragraph (a), by virtue of which the 2003 Agreement, as a code agreement, ought to come to an end.

This case has given rise to the following broad issues between the parties:

Turning to Preliminary Issue (c), the Respondents’ case is that Icon intends to redevelop the Steps Hill Sites, and cannot reasonably do so unless the 2003 Agreement comes to an end.

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 refer to these works as “the Claimed Works”. It will be noted that, of the Claimed Works, it is accepted by the Respondents that items (i), (ii), (iii) and (v) have already been carried out. It will also be noted that the Claimed Works extend across the Steps Hill Sites, and include the removal of the Masts from the Vodafone Site and the MBNL Site and the migration of the Active ECA from the Vodafone Site and the MBNL Site to the Orange Site (or the installation of new Active ECA by those migrating to the Orange Site).

This case has given rise to the following broad issues:

Turning to Preliminary Issue (d), the Respondents’ case is that Vodafone is not entitled to the code agreement because the test under Paragraph 21 for the imposition of the code agreement on the site provider is not met. This takes one back to the notices served by Vodafone on APW on 31^st March 2020, seeking the agreement of APW that the 2003 Agreement should be terminated and that a new agreement should have effect between Vodafone and APW, pursuant to Paragraphs 33(1) and 20(2). In the Renewal Proceedings Vodafone seeks an order pursuant to Paragraph 20(4), so far as necessary, for the imposition of a new code agreement between itself and Icon.

Paragraph 21 sets out the test which must be satisfied before an order can be made under Paragraph 20, in the following terms:

“(1)

Subject to sub-paragraph (5) and paragraph 27ZA, the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met.

(2)

The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

(3)

The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

(4)

In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services.

(5)

The court may not make an order under paragraph 20 if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.”

The Respondents take the preliminary point that CTIL is the occupier of the Vodafone Site for the purposes of Parts 2 and 4 of the Code and that, as such, Vodafone is unable to satisfy the public benefit test in Paragraph 21 because it could not seek a code agreement in respect of the Vodafone Site against Icon, but only against CTIL. If the Respondents are wrong on this preliminary point, their case is that the conditions in Paragraph 20(2) and (3) are not met. The Respondents’ case thus gives rise to the following broad issues: