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

As noted above, the contractual term of the 2003 Agreement expired on 30^th July 2018, shortly after the Code came into force. Thereafter the 2003 Agreement was continued by Paragraph 30(2). On 25^th September 2018 the Bucks transferred the freehold title to the Steps Hill Sites to APW. On 31^st March 2020 Vodafone served notices on APW 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).

On 14^th December 2022 Entrust Environmental Limited (“Entrust”), acting as planning consultants on behalf of AP Wireless, made an application to Maidstone BC for the purposes of determining whether prior approval was required for the carrying out of certain works. The works in question were described in the following terms:

“The removal of 2no. telecommunication 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 the 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.”

The proposed new tower referred to in this description was what is now the New Tower, as constructed on the Orange Site. The reason for the application (“the Prior Approval Application”) was that, so far as planning permission for the works was concerned, AP Wireless was relying on permitted development rights in the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended (“the GPDO”). Specifically, AP Wireless was relying upon the following permitted development rights in Class A of Part 16 of Schedule 2 to the GPDO:

“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 electronic communications apparatus,”

By reason of the location of the Steps Hill Masts in an AONB, AP Wireless was required to apply to Maidstone BC, as the local planning authority (“LPA”), for a determination as to whether the prior approval of Maidstone would be required in respect of the proposed works.

By a decision notice dated 14^th February 2023 Maidstone BC granted prior approval for the siting and appearance of the proposed works (“the Prior Approval”). So far as the description of the proposed works was concerned, the decision notice was expressed to grant prior approval for “the above”. This was a reference to the proposal for the proposed works, as set out in the Prior Approval. The proposal for the proposed works adopted the description of the proposed works in the Prior Approval Application, in the following terms (bold print not added):

“PROPOSAL: Prior Notification for Electronic Communications for the removal of 2no. telecommunication 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 the 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.”

There was considerable dispute between the parties as to the meaning and effect of the above description of the proposed works, and as to the meaning and effect of the Prior Approval Application, the Prior Approval and various other associated planning documents. We will need to come back to these areas of dispute in detail, when we consider the planning issues. For present purposes, what is most relevant is that it is the Respondents’ case that the proposed works, in respect of which the Prior Approval was granted, included and were understood by Maidstone BC to include, in addition to the construction of the New Tower, the removal of the Masts, that is to say the removal of the Vodafone Mast from the Vodafone Site and the removal of MBNL Mast from the MBNL Site.

On 17^th March 2023 Vodafone issued the reference in the Tribunal which we are referring to as the Renewal Proceedings. The Renewal Proceedings were transferred to the First-tier Tribunal Property Chamber (“the FTT”) on 20^th March 2023, but were subsequently transferred back to the Tribunal. In its statement of case in the Renewal Proceedings, as originally served on 28^th April 2023, APW indicated its intention to serve notices of termination of the 2003 Agreement, pursuant to Paragraph 31, if what was referred to as “the Negotiation” failed. The Negotiation referred to a letter to Vodafone’s solicitors from APW’s solicitors dated 27^th April 2023. In that letter APW’s solicitors advised that planning permission had been obtained for the construction of the New Tower and, on behalf of APW and Icon (to which the Steps Hill Sites were about to be transferred), offered terms for a new agreement, subject to a landlord’s break clause on Code grounds, capable of exercise between the second and third anniversaries of the new agreement. The reasoning behind this offer was stated in the following terms by APW’s solicitors:

“APW and Icon believe that the replacement site [the Orange Site] to be installed by Icon will offer an improved coverage solution on commercial terms.

In order to allow as smooth a handover as possible between sites, APW believes it is in the interests of both parties to avoid protracted legal proceedings, which would include the service of termination notices in respect of the Site [the Vodafone Site] to protect the development to be undertaken by Icon. We therefore suggest that our clients enter into a new lease for the Site, which allows for the Site to be transferred to Icon, the Development Site [the Orange Site] to be built and thereafter for the Site to be decommissioned, all outside of proceedings and without unnecessary costs being incurred by the parties.”

This offer was not acceptable to Vodafone. On 4^th September 2023 Icon, which by then had become the owner of the freehold title to the Steps Hill Sites, served notices of termination of the 2003 Agreement on Vodafone, pursuant to Paragraph 31(1). The notices of termination stated that Icon wished to bring the 2003 Agreement to an end, on 10^th March 2025.

Paragraph 31(2)(c) stipulates that a notice of termination served pursuant to Paragraph 31(1) must “state the ground on which the site provider proposes to bring the code agreement to an end”. Paragraph 31(4) sets out the grounds which may be relied upon for this purpose, in the following terms:

“(4)

The ground stated under sub-paragraph (2)(c) must be one of the following—

(a)

that the code agreement ought to come to an end as a result of substantial breaches by the operator of its obligations under the agreement;

(b)

that the code agreement ought to come to an end because of persistent delays by the operator in making payments to the site provider under the agreement;

(c)

that the site provider intends to redevelop all or part of the land to which the code agreement relates, or any neighbouring land, and could not reasonably do so unless the code agreement comes to an end;

(d)

that the operator is not entitled to the code agreement because the test under paragraph 21 for the imposition of the agreement on the site provider is not met.”

The termination notices specified sub-paragraphs (a), (c) and (d) of Paragraph 31(4) as the grounds of termination relied upon by Icon. We will refer to these sub-paragraphs, respectively, as “Paragraph (a)”, “Paragraph (c)”, and “Paragraph (d)”.

On 2^nd November 2023 Vodafone served counter-notices to the termination notices, pursuant to Paragraphs 32(1)(a) and 32(3). The counter-notices stated that Vodafone wanted Icon to agree to confer or be otherwise bound by a new code right in place of the existing code right, and attached a draft form of the new code rights sought by Vodafone.

On 7^th November 2023 Vodafone issued (against Icon) the current reference in the Tribunal, which we are referring to as the Termination Proceedings. In the Termination Proceedings Vodafone is seeking a new code agreement in respect of the Vodafone Site pursuant to Paragraph 34(6). Paragraph 34(6) provides as follows:

“(6)

The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

(a)

confers a code right on the operator, or

(b)

provides for a code right to bind the site provider.”

By its statement of case in response to the Termination Proceedings, Icon relied upon Paragraphs (a), (c) and (d) as the grounds upon which the 2003 Agreement should be terminated, without entry into a new code agreement. Icon also contended that these grounds of termination should be determined by way of preliminary issue.