LC-2023-000521 Telecommunications Site nearTotties Farm Hever RoadEdenbridge Kent TN8 5DJ

FTT-Property

LC-2023-000521 Telecommunications Site nearTotties Farm Hever RoadEdenbridge Kent TN8 5DJ · 2025-05-16

[1]1 This is the Decision of the First-tier Tribunal on a Reference (issued in the Upper Tribunal on 10 August 2023 and transferred to the First-tier Tribunal on 14 August 2023) including an application under paragraph 33(5) of the Electronic Communications Code (Schedule 3A to the Communications Act 2003 (‘the Code’)). Pursuant to paragraph 34(6) of the Code the Claimant seeks(i) an order for termination of the existing code agreement between the parties and

(ii) an order that the parties enter into a new code agreement; and pursuant to paragraph 35(2A)(a) the Claimant also seeks an order specifying the interim rent payable under the existing order between the date of the Claimant’s reference and the commencement date of the new agreement. 2 The Claimant is an ‘operator’ within the meaning of paragraph 2 of the Code. More specifically, the Claimant does not provide an electronic communications network of its own: rather it installs and maintains an infrastructure system (as defined in paragraph 7 of the Code) to providers of electronic communications networks. The users of the Claimant’s infrastructure system include Telefonica UK Limited, Vodafone Limited and other third party operators, including EE Limited. 3 The Respondents are the current registered proprietors of the freehold of the subject property, which comprises land off Hever Lane, Edenbridge, Kent TN8 5DJ and which is registered at HM Land Registry under title number K978215. The Respondents have largely acted through Alan Richard Gould, initially in his capacity as executor of the estate of Enid Julia Gould (deceased) and subsequently as one of the freeholders of the subject property. Background 4 By an agreement dated 23 February 2004 and made between (1) Jeremy Simon Kenneth Calcutt, Timothy John Calcutt, Herbert George Manwaring and Enid Julia Gould and (2) Vodafone Limited (‘the 2004 agreement’), Vodafone was granted rights under the old electronic communications code in Schedule 2 to the Telecommunications Act 1984 (‘the 1984 Act’) to install and operate electronic communications apparatus on the subject property for a term of 15 years, expiring on 22 February 2019. 5 The agreement was varied by Deeds of Variation dated 6 October 2006 and 22 April 2016. 6 It is not disputed that the 2004 agreement (i) was an agreement for the purposes of paragraph 2 of the old electronic communications code contained in Schedule 2 to the 1984 Act, (ii) was validly contracted out of Part II of the Landlord and Tenant Act 1954 and

(iii) was in force as a contractual agreement when the (new) Code came into force on 28 December 2017. The 2004 agreement is therefore a ‘subsisting agreement’ within the meaning of paragraph 1(4) of the transitional provisions contained in Schedule 2 to the Digital Economy Act 2017 and thereafter it has had effect as an agreement under Part 2 of the Code, subject to the modifications made by those transitional provisions. 7 Pursuant to a licence to assign dated 22 April

[2]Disputed terms 33 As noted above, the Respondents have not pursued their opposition to a new Code agreement but they have continued to oppose the terms of the Claimant’s draft Code lease, in relation to both the substance of terms included in that draft and also terms proposed by the Respondents but not included in that draft. Representations of the parties Representations of the Claimant 34 First, Mr Tipler argued that the ‘starting point’ for the new Code agreement should be the Claimant’s draft agreement, rather than the 2004 agreement (which was originally proposed by the Respondents) or the GLA template lease (which later became the focus of the Respondents’ arguments). 35 Mr Tipler submitted(i) that the Code was intended to confer broader rights and more flexibility on operators;

(ii) that it cannot have been intended that the public benefits and investment incentives conferred by the new Code would be stultified by the continuation of subsisting agreements, with more limited rights at higher rents or fees, for a significant time after their expiry dates; and

(iii) that the operator’s ‘business and technical needs’ (the first in a list of considerations to which the Tribunal is required to have regard (see paragraph 34(13)(a) of the Code) are its reasonable requirements as regards the statutory purposes, namely the provision of its network and an infrastructure system, and may also include a need to have a standard form of agreement for its code agreements, for estate management reasons: see EE Limited and Hutchison 3G UK Limited v Stephenson and AP Wireless II (UK) Limited

[2021] UKUT 167 (LC)

(‘Stephenson’) at paragraphs [46]-[53]. 36 As noted above, at the case management hearing on 26 September 2024 the Tribunal clearly ordered that the Claimant’s draft Code lease should form the basis of the new Code agreement. 37 In so far as the Respondents sought to focus on the alleged deviation of the Claimant’s draft lease from the GLA template lease, Mr Tipler pointed out that large parts of that template were already included in the Claimant’s draft and other provisions had been accepted for inclusion. However, in considering further terms in the template, Mr Tipler urged the Tribunal to follow the guidance in Stephenson. 38 Second, Mr Tipler made a number of submissions by reference to recent decisions of the Upper Tribunal (and the Court of Appeal) as to the approach to disputed terms – (i) that the Tribunal should exercise its discretion with the statutory purposes of the Code well in mind: Cornerstone Telecommunication Infrastructure Limited v London & Quadrant Trust

[2020] UKUT 0282 (LC)

at paragraph [44]; (ii) that, in considering a site provider’s objections to proposed terms (or the omission of terms proposed by the site provider), regard should be had to the agreement as a whole and the protection afforded to the site provider: EE Limited and Hutchison 3G UK Limited v Hackney LBC

[2021] UKUT 142 (LC)

; (iii) that the agreement should n

[3]Representations of the Respondents 42 It is difficult to provide a succinct summary of the Respondents’ arguments. At no time have the Respondents provided a structured statement of principles to be applied in determining the appropriate terms to be included in the new Code agreement. Rather, Mr Gould has persisted in sending a stream of emails, which did not reflect a consistent view of the Respondents’ proposals for the new Code agreement. While initially seeking a simple extension of the 2004 agreement, the Respondents seemed to accept the Code necessitated a new agreement; but, even after the Tribunal issued Directions for that agreement to be based on the Claimant’s draft agreement, the Respondents persisted in seeking to redraft that agreement in terms of the GLA template lease. 43 The law relating to the Code is a specialist area of law of some considerable complexity. However, despite repeated encouragement from the Tribunal and from the Claimant’s solicitors, Mr Gould has largely acted without specialist professional advice. The Respondents did instruct solicitors (Cripps) during a 12-month period between mid-2022 and mid-2023 and a specialist telecoms agent (Batcheller Monkhouse) for a longer period. However, the correspondence from Mr Gould suggests that he continued to dictate the Respondents’ approach to negotiations with the Claimant. 44 Unfortunately, despite apparent confidence in his legal knowledge, there was evidence in the documentation (and in his oral representations at the hearing) that Mr Gould failed to understand some of the complexities and subtleties of the relevant law. 45 It is also the case that Mr Gould failed to comply with Directions (which he has agreed) for the normal travelling draft procedure. It has already been noted that on two occasions the Tribunal issued barring warnings because of that non-compliance. 46 In the end the Respondents presented the Tribunal with their own draft agreement and a lengthy schedule of disputed terms. Discussion Statutory framework 47 As already noted, the 2004 agreement is a subsisting agreement within the meaning of paragraph 1(4) of the transitional provisions contained in Schedule 2 to the Digital Economy Act 2017 and it thereafter has had effect as an agreement under Part 2 of the Code, subject to the modifications made by those transitional provisions. Notwithstanding the expiry of the contractual term, pursuant to Part 5 of the Code the 2004 agreement continues by virtue of paragraph 30 until the agreement is terminated pursuant to Part 5. Paragraph 31 enables the site provider to give notice to bring the code agreement to an end; and either party may give notice under paragraph 33 requiring the current agreement to be changed or a new agreement to take effect. Where any such notice gives rise to a dispute between the parties, the matter may be referred to the Tribunal. 48 Paragraph 34 sets out the orders that can be made in such references. In particular, paragraph 34(5)

[4][49] The weight to be attached to the fact that a term was included in the existing code agreement will in part turn on its consistency with the aims of the Code. If the relevant term cannot be thought to be in conflict with those aims, the case for replicating it in the new agreement may be compelling. Plainly, the position will be different if the term is at variance with the objectives of the Code. In practice, the terms of a code agreement entered into since the introduction of the Code are more likely to accord with its purposes than those of an agreement which pre-dates the Code. 53 The Court of Appeal at paragraph [46] quoted with approval the decision of the Upper Tribunal in Stephenson, where the Tribunal (Fancourt J) said - [53] … The purpose underlying the Code is to ensure that operators can use and exploit sites more flexibly, quickly and cheaply than had previously been the case, at lower than market rents, in furtherance of the public interest of providing access to a choice of high quality electronic communications networks, while providing a degree of protection to site owners’ legitimate interests. 54 In Dale Park at paragraph [61] the Tribunal said that in making decisions about the terms of a renewal agreement - [61] … it may be helpful to think in terms of a balancing process between the claimant’s requirements and the respondent's concerns, but the Code does not put it like that. Perhaps a better way to look at it is as follows. [62] First, the Tribunal should consider the term the operator seeks and the reason why it needs the term in question in order to pursue the business for whose purposes it received its Ofcom direction and in light of the public interest in a choice of high quality telecommunications services. [63] Second, the Tribunal will consider the concerns or objections raised by the respondent and whether in order to minimise loss or damage in accordance with paragraph 23(5) the term should not be imposed, or should be imposed to a limited or qualified extent. [64] If those concerns do not prevent the imposition of the term and do not require its qualification, then the Tribunal will consider whether, in imposing that term, it should also impose further terms to minimise loss or damage. 55 In the present reference many terms are sought by the Respondents which the Claimant does not want and the Tribunal must determine whether those terms are appropriate. It has to be considered whether the effect of those terms upon the Claimant’s business and the efficiency of its operations are in the public interest. Where it can be seen to have an unhelpful effect upon the Claimant’s business, the Tribunal must consider whether the term sought, or another term to similar effect, is necessary in order to cause ‘the least possible loss and damage’ to the site provider. 56 The Respondents are rightly concerned with ensuring that appropriate safeguards are in place in order to protect their property. However, this is not a case