Landmark decision in telecoms - Vodafone Limited vs Icon Tower Infrastructure Limited and AP Wireless II (UK) Limited
In a rare turn of events, a recent Upper Tribunal (Lands Chamber) decision has left both parties' solicitors claiming victory. The case, Vodafone Limited (Claimant) vs Icon Tower Infrastructure Limited and AP Wireless II (UK) Limited (Respondents), referred to as Steps Hill Farm, delves into the complexities of the Electronic Communications Code (ECC) and the grounds for terminating a code agreement. We spoke to Henry Mawhood MRICS , a senior surveyor in our telecoms team to learn more about the implications of this decision.
Vodafone sought the renewal of a code agreement under the ECC. Icon Tower, having acquired the freehold from AP Wireless, aimed to terminate the agreement, citing substantial breaches, redevelopment intentions, and the failure to meet the test under Paragraph 21 of the Code. For context, both AP Wireless and Icon Tower share the same parent company, AP Wireless Group. Icon Tower, a global infrastructure provider, had already built a new mast and proposed Vodafone join this new structure, which promised better coverage. However, Vodafone rejected this proposal, leading to the legal battle.
The Tribunal's decision addressed three preliminary issues. First, the Respondents alleged that Vodafone had shared rights with CTIL, breaching the Alienation clause. The Tribunal examined the Contributions Agreement and MSA between Vodafone and CTIL but found no evidence of such a breach.
Second, the issue focused on whether Vodafone or CTIL was the occupier for the purposes of Parts 2 and 4 of the Code. The Tribunal concluded that Vodafone met the necessary tests under Paragraph 21, preventing Icon Tower from relying on this ground.
Third, the most contentious issue was the redevelopment intentions. Icon Tower argued that the removal of Vodafone's mast was necessary for redevelopment. The Tribunal acknowledged that redevelopment should not be hindered by code rights but clarified that not all activities constituted redevelopment. The Tribunal deemed that the removal of concrete bases, a redundant meter cabinet, construction of a new tower, and associated works constituted redevelopment. However, groundworks on adjacent land for power and fibre connections, construction of a new headframe on the new tower, and the removal of Vodafone and MBNL masts were not deemed as redevelopment.
The Tribunal started with planning issues, noting that Icon Tower's prior approval required the removal of masts but not the relocation of antennas. The Tribunal believed that Icon Tower risked breaching their planning approval if the masts were not removed, as the Local Planning Authority likely would not have granted permission without this condition.
The Tribunal's interpretation of "neighbouring land" was broad, including sites up to 160 meters away and the surrounding field. This provides landowners with a clearer understanding of how far-reaching "neighbouring land" can be, although it emphasises that each case is unique.
The Tribunal provided clarity on what constitutes redevelopment. The Tribunal were clear that redevelopment means more than mere demolition works and that redevelopment requires the construction of something new to be considered as redevelopment.
While Vodafone may have won the immediate battle by preventing the termination of the agreement, Icon Tower's partial success in establishing the right to seek mast removal for redevelopment purposes suggests a broader victory. This case sets a precedent for future telecommunications disputes, emphasising the delicate balance between infrastructure development and the rights of operators.
As the telecommunications landscape continues to evolve, this decision will undoubtedly influence future legal interpretations and industry practices. Both landowners and operators must stay informed and proactive to navigate the complexities of the ECC effectively.