“AGREEMENT FOR THE INSTALLATION OF PCN EQUIPMENT – GREENFIELD”
“A. The Owner is entitled to a legal estate in the site described below (“the Site”) as identified in red on the attached plan: GREENFIELD SITE AT FIELDS FARM, SANDBACH B. The Owner has agreed that Orange shall have the right at its own risk and expense: (i) to install operate maintain repair and renew PCN Equipment on the Site in connection with Orange’s PCN System, (ii) to run maintain repair and renew an electricity cable from the Owner’s electricity supply to the PCN Equipment or if required a mains electricity service from the boundary of the premises to the PCN Equipment, (iii) to run maintain repair and renew or permit any other Public Telecommunications Operator to run maintain repair or renew a communications cable from the PCN Equipment to the boundary of the Premises in such positions as shall be agreed between the parties, (iv) to obtain vehicular access at all times to and from the Site. C. Orange has agreed to pay for such rights a Tariff of£3,300 per annum exclusive of VAT payable in accordance with clause 3.1 of the attached terms and conditions. D. The Minimum Term is 10 years from the date shown above. E. This Agreement shall be subject to and shall incorporate the terms and conditions attached.”
“2.1 This Agreement shall come into effect on the date shown above and shall continue for no less than the Minimum Term. It may be terminated by either party giving to the other not less than 12 months’ notice in writing to expire at any time on or after the expiry of the Minimum Term. 2.2 Notwithstanding the provisions of clause 2.1 Orange may terminate this Agreement at any time on not less than 3 months prior written notice expiring on a Payment Day in the event of circumstances arising such that the Site is no longer suitable for the operation of PCN Equipment including (but not limited to) the erection of new buildings or environmental changes to the area in which the Site is located or the complete or partial destruction of the Site. 2.3 In the event that a redevelopment of the Site is to take place the Owner agrees to consult with Orange and agree to a suitable relocation of its PCN Equipment within the Premises. If a relocation is not possible then the Owner shall have the right to terminate this Agreement at any time upon giving not less than 12 months prior written notice to Orange.”
“AGREEMENT FOR THE INSTALLATION OF TELECOMMUNICATIONS EQUIPMENT”
“A. The Owner is entitled to a legal estate in the site described below (“the Site”) shown for identification purposes only edged in red on the attached plan, part of Hanover Farm, Lower Road, Lower Road, Hullbridge, Essex as shown on plan number: 30/ESX0311/01 Issue A B. The Owner has agreed that Orange shall have the following rights (“the Rights”): (i) at Orange’s expense to install operate maintain repair renew replace upgrade and add to the Telecommunications Equipment on the Site, (ii) at Orange’s expense to run maintain repair renew and replace an electricity cable from the Owner’s electricity supply to the Telecommunications Equipment or if required a mains electricity service from the boundary of the Premises to the Telecommunications Equipment in such positions as shall be agreed between the parties, (iii) at Orange’s expense to bring onto and keep and operate on the Premises in a position to be agreed between the parties for any period when the electricity supply to the Telecommunications Equipment has been interrupted a back up power generator together with any associated sockets and cables, (iv) at Orange’s expense to run maintain repair renew and replace a communications link from the Telecommunications Equipment to the boundary of the Premises in such positions as shall be agreed between the parties, (v) to obtain access including vehicular access subject to giving 24 hours reasonable prior notification except in the case of emergency when access shall be unrestricted to and from the Site over and along the route shown in blue on the attached plan including where necessary a right to lay a hardcore track along such route together with a right of access on reasonable notice (except in all cases of carrying out Emergency Works (as defined in the Schedule to this Agreement) when no notice shall be required ) to such parts of the Premises as are reasonably necessary to exercise the Rights provided that Orange will comply with such reasonable safety and security procedures as are required by the Owner.”
“15 metre (excluding lightning protection and antennae) tower/mast, antenna system with supporting structure to give up to 360 degrees radio coverage and including up to 6 antennae up to 4 microwave dish antennae, equipment cabin (s)/cabinet (s) not exceeding in aggregate 35 cubic metres in volume, associated feeders, LNAs and associated equipment all cabling and ancillary equipment, cable gantries and power equipment as required.”
“following completion of the Works to erect a stock proof fence to fully enclose the Telecommunications Equipment and to maintain such fence in a good and safe state of repair and condition throughout the Term.”
“23. I now turn to deal with the factors identified by the parties which it is said point in the direction of either a lease or a licence.”
“24. Clause D of the 1997 Agreement provides “The Minimum Term is 10 years from the date shown above”
“In the case of the 1997 and 2002 Agreements I am not concerned with residential accommodation where there is, for the very good reason of providing protection for a person occupying property as their home, often a bright line between lease and licence. In the context of this reference, I am concerned with “a legal relationship other than a tenancy”
“78. In order to discover the intention of the parties I have considered the totality of rights and obligations contained in both the 1997 and 2002 agreements separately. In doing so I have considered the surrounding circumstances at the time the agreement was entered into. As set out above some clauses point towards exclusive possession, others are more consistent with a legal relationship other than a tenancy. I have disregarded any labels attached by the parties. 79. As in Edelwind “the parties have expressed themselves both ways”
“80. My decision is finely balanced. There are clearly clauses to be found in “Terms and Conditions” attached and incorporated into the 1997 Agreement and contained in Schedule 1 to the 2002 Agreement which are resonant of a lease. However, those terms and conditions are, in my judgment, outweighed by clause B to both Agreements. The intention of the parties was that the operator would be granted a bundle of rights in connection with the installation and operation of PCN/Telecommunications Equipment. There is no grant of exclusive possession with a corresponding interest in land. The “lift and shift” provisions provide a qualified right for the site owner, in consultation with Orange, to more the Site to another location within the Premises (of which the Site forms a part). The Plans attached to the agreement do not demarcate the site. The Plans are in fact technical drawings of the PCN/Telecommunications Equipment. The quite extraordinary fencing and the almost “Orwellian” security observed by Mr Powell are not intended to demarcate the site or keep the landlord out. Fencing and security is present to protect the PCN/Telecommunications Equipment in both the 1997 and 2002 Agreements. The Site is secondary. 81. I find that neither the 1997 nor the 2002 Agreement grant exclusive possession. That does not mean that they grant purely personal contractual rights either. Both are telecommunications agreements. Such agreements are not leases to which Part 2 of theLandlord and Tenant Act 1954 applies.”
“In the present case, the agreement dated7 March 1983 professed an intention by both parties to create a licence and their belief that they had in fact created a licence. It was submitted on behalf of Mr. Street that the court cannot in these circumstances decide that the agreement created a tenancy without interfering with the freedom of contract enjoyed by both parties. My Lords, Mr. Street enjoyed freedom to offer Mrs. Mountford the right to occupy the rooms comprised in the agreement on such lawful terms as Mr. Street pleased. Mrs. Mountford enjoyed freedom to negotiate with Mr. Street to obtain different terms. Both parties enjoyed freedom to contract or not to contract and both parties exercised that freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”
“My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent. Sometimes it may be difficult to discover whether, on the true construction of an agreement, exclusive possession is conferred. Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships. Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office. But where as in the present case the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy.”
“As to the first question—whether the so-called licence of 1957 April 12, 1954, in fact amounted to a tenancy agreement under which the premises were let to the trustees—the principles applicable in resolving a question of this sort are, I apprehend, these. It does not necessarily follow that a document described as a licence is, merely on that account, to be regarded as amounting only to a licence in law. The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence.”
“36 This approach is not peculiar to the question whether an agreement creates a licence or a tenancy. In Secret Hotels2 Ltd (formerly Med Hotels Ltd) v Revenue and Customs Comrs[2014] 2 All ER 685 , para 32 the Supreme Court approved an observation of mine in an earlier case: “The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the written agreement; but it will then go on to consider whether those obligations fall within the relevant legal description. Thus the question may be whether those rights and obligations are properly characterised as a licence or tenancy (as in Street v Mountford[1985] AC 809 ); or as a fixed or floating charge (as in Agnew v Comr of Inland Revenue[2001] 2 AC 710 ), or as a consumer hire agreement (as in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd[2009] 1 WLR 1375 ). In all these cases the starting point is to identify the legal rights and obligations of the parties as a matter of contract before going on to classify them.” “The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the written agreement; but it will then go on to consider whether those obligations fall within the relevant legal description. Thus the question may be whether those rights and obligations are properly characterised as a licence or tenancy (as in Street v Mountford[1985] AC 809 ); or as a fixed or floating charge (as in Agnew v Comr of Inland Revenue[2001] 2 AC 710 ), or as a consumer hire agreement (as in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd[2009] 1 WLR 1375 ). In all these cases the starting point is to identify the legal rights and obligations of the parties as a matter of contract before going on to classify them.”
“107 As I see it, the ordinary principles governing the true construction of a contract apply to tenancy agreements and leases. The principles have been discussed in many cases, notably of course, as Lord Neuberger MR said in Pink Floyd Music Ltd v EMI Records Ltd[2010] EWCA Civ 1429 at [17], by Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd[1997] AC 749 , passim, in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 , 912F—913G and in Chartbrook Ltd v Persimmon Homes Ltd[2009] AC 1101 , paras 21—26. I agree with Lord Neuberger MR (also at para 17) that those cases show that the ultimate aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. As Lord Hoffmann made clear in the first of the principles he summarised in the Investors Compensation Scheme case, at p 912H, the relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.”
“21 The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.”
“37 As well as what is written on the page, the court may consider the circumstances in which the agreement was made. In AG Securities v Vaughan[1990] 1 AC 417 , 458 Lord Templeman put it this way: “In considering one or more documents for the purpose of deciding whether a tenancy has been created, the court must consider the surrounding circumstances including any relationship between the prospective occupiers, the course of negotiations and the nature and extent of the accommodation and the intended and actual mode of occupation of the accommodation.” “In considering one or more documents for the purpose of deciding whether a tenancy has been created, the court must consider the surrounding circumstances including any relationship between the prospective occupiers, the course of negotiations and the nature and extent of the accommodation and the intended and actual mode of occupation of the accommodation.”
“75. Applying that approach, it seems to me that the regime is intended to work in such a way that the person currently entitled to the benefit and burden of the agreement as operator, and the person currently entitled to the benefit and burden of the agreement as site provider, are parties to the agreement and can exercise the rights conferred by Part 5 of the Code. That can in my judgement be achieved by construing paragraph 10(3) as not intended to define exhaustively who is to be treated as a party to the agreement. On that basis APW, being currently entitled to both the benefit and the burden of the Lease by virtue of the Concurrent Lease, is to be regarded as a “party to the agreement” with the result that it can invoke paragraph 31 by serving notice on Vodafone, and both it and Vodafone can invoke paragraph 33 by serving notice on each other as “the other party to the agreement.””
“78. Mr Read said that the Code created “a sui generis form of statutory rights” (Compton Beauchamp at [117] per Lady Rose), and was “designed to be, so far as possible, a self-contained Code” (Cornerstone Telecommunications Infrastructure Ltd v University of London[2019] EWCA 2075 at [34] per Sir Terence Etherton MR, Lewison and Arnold LJJ). It was intended to be a unified set of rules that covered all situations from a one-off licence in relation to tree lopping to a long-term full-blown lease. That I accept. The Code has to be applied both to contractual arrangements such as licences or wayleaves and to the grants of property rights such as leases. But I do not accept that this means that one jettisons the ordinary law of landlord and tenant, or, as Lewison LJ put it in argument, that the Code exists in a legal vacuum.”
“35. Mr McPherson, for Bashir, sought to rely upon what happened after the making of the Agreement as indicating what the parties’ intentions were regarding the proper interpretation of clause 5. I do not accept these submissions, for three reasons. 36. First, in my judgment these were not matters which could properly be prayed in aid to establish the true objective construction of clause 5. It was common ground that the general rule is that the parties’ conduct after the making of a contract cannot be taken into account to indicate what its true meaning is, judged on an objective standard: see e.g. James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd[1970] AC 572 ; Chitty on Contracts, 13th ed., vol. 1, para. 12-126. A party’s later conduct might indicate what that party’s own subjective understanding was of what had been agreed. However, as a matter of principle, the meaning of a contract is not given by reference to the parties’ subjective understandings (even if, as it so happens, they might coincide) but by the objective interpretation which the court gives to the words used in their factual and legal context. Conduct of a party after the making of the contract does not provide relevant factual context to explicate the meaning with which the parties used the words at the time they made the contract.”
“40. In Powell's case 38 P & CR 470 Slade J said, at p 470: "(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." Counsel for both parties criticised this definition as being unhelpful since it used the word being defined—possession—in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess").” "(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." Counsel for both parties criticised this definition as being unhelpful since it used the word being defined—possession—in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess").”
“41. In Powell's case Slade J said, at pp 470-471: "(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so." I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before30 April 1986 .” "(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so." I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before30 April 1986 .”
“Enclosure is the strongest possible evidence of adverse possession, but it is not indispensable.”
“36 This approach is not peculiar to the question whether an agreement creates a licence or a tenancy. In Secret Hotels2 Ltd (formerly Med Hotels Ltd) v Revenue and Customs Comrs[2014] 2 All ER 685 , para 32 the Supreme Court approved an observation of mine in an earlier case: “The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the written agreement; but it will then go on to consider whether those obligations fall within the relevant legal description. Thus the question may be whether those rights and obligations are properly characterised as a licence or tenancy (as in Street v Mountford[1985] AC 809 ); or as a fixed or floating charge (as in Agnew v Comr of Inland Revenue[2001] 2 AC 710 ), or as a consumer hire agreement (as in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd[2009] 1 WLR 1375 ). In all these cases the starting point is to identify the legal rights and obligations of the parties as a matter of contract before going on to classify them.”” “The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the written agreement; but it will then go on to consider whether those obligations fall within the relevant legal description. Thus the question may be whether those rights and obligations are properly characterised as a licence or tenancy (as in Street v Mountford[1985] AC 809 ); or as a fixed or floating charge (as in Agnew v Comr of Inland Revenue[2001] 2 AC 710 ), or as a consumer hire agreement (as in TRM Copy Centres (UK) Ltd v Lanwall Services Ltd[2009] 1 WLR 1375 ). In all these cases the starting point is to identify the legal rights and obligations of the parties as a matter of contract before going on to classify them.””
“77. In the case of the 1997 and 2002 Agreements I am not concerned with residential accommodation where there is, for the very good reason of providing protection for a person occupying property as their home, often a bright line between lease and licence. In the context of this reference, I am concerned with “a legal relationship other than a tenancy”
“23 Thus, there is no defined list of special cases in which a person who is let into, or allowed to remain in, another's property, with exclusive possession and paying for his occupation may be a licensee rather than a tenant. There are certain recognised categories, such as service occupiers and lodgers, but otherwise it depends on finding either that there is no intention to contract at all or that the circumstances are such as to justify attributing the possession to something quite distinct from a tenancy. The question is whether either of those findings is correct in the present circumstances.”
“78. Mr Read said that the Code created “a sui generis form of statutory rights” (Compton Beauchamp at [117] per Lady Rose), and was “designed to be, so far as possible, a self-contained Code” (Cornerstone Telecommunications Infrastructure Ltd v University of London[2019] EWCA 2075 at [34] per Sir Terence Etherton MR, Lewison and Arnold LJJ). It was intended to be a unified set of rules that covered all situations from a one-off licence in relation to tree lopping to a long-term full-blown lease. That I accept. The Code has to be applied both to contractual arrangements such as licences or wayleaves and to the grants of property rights such as leases. But I do not accept that this means that one jettisons the ordinary law of landlord and tenant, or, as Lewison LJ put it in argument, that the Code exists in a legal vacuum. 79. On the contrary, the Law Commission in their Report very much took the view that leases that confer code rights should, as they put it, “look after themselves” and that the general law should apply (§2.123). Thus they said that the primary purpose of the old code provisions which are the equivalent of paragraph 10 in the Code “is to ensure that the sort of priority rules that work automatically (subject to registration) for leases will also apply to personal rights” (§2.87); and again that where code rights are contained in a lease “we take the view that the lease itself must govern priority” (§2.107). 80. It is true that the Government did not entirely accept the Law Commission’s recommendations, but the point on which they differed was whether any special provision should be made in respect of registration of code rights when they were contained in leases. The Law Commission had recommended that the Code make no special provision in this respect, with the result that leases conferring code rights, but not mere contractual arrangements, would need to be registered at HM Land Registry. The Government however disagreed, considering that code rights should be binding on successors without any requirement to register: see the Government’s consultation response, A New Electronic Communications Code (May 2016), at [40]-[47]. The Government’s view was duly given effect to in paragraph 14 of the Code. Subject to that point, however, there is no suggestion in the Government response that they disagreed with the Law Commission’s recommendation that leases should look after themselves in accordance with the general law.”
“32. Most conveyances, transfers and leases have a plan showing the property edged red – usually for identification only. The plan functions to identify and demarcate the property being sold or leased. Plans usually show external features such as nearby roads or houses so that what is being sold /leased can be readily ascertained. 33. However, the 3 plans annexed to the Supplemental Agreement do not fulfil that function. It is impossible to tell where the site is in relation to the farms themselves itself let alone the wider landscape. That is because what are referred to as plans are not plans as understood by either parties or a conveyancer. They do not identify or demarcate. Instead, they are highly technical drawings containing detailed specifications of landscaping, antenna, dishes, feeder cables and even a plan of the headframe complete with lighting finials and LNA Units. What the Respondent says are plans to demarcate the demise are in fact detailed technical specifications of the telecommunications equipment to be installed. 34. The same observations apply to the plan annexed to the 2002 Agreement. Granted it is described as “Site Plan”, but it does not identify where the site is, nor does it demarcate it. Again, it is a technical specification of the telecommunications apparatus to be installed containing details such as electricity requirements, equipment schedule, final antenna key etc. (Again, the position in the two references before me is in contrast to the plans in references LC-2023-000323 and 332 at pages 1027 and 1049 of the Trial Bundle.)”
“59 I take the view that there is no grant of exclusive possession of the roof. The second respondent has unrestricted access to it save for the exclusion zones which are in place for safety purposes and for the cabinet (which is the operator’s property in any event). The operator can access the roof only within certain hours, and therefore, as Mr Clark says, the agreement cannot be said to be conferring a right to occupy the roof, let alone to grant exclusive possession of it. The second respondent’s covenant not to enter the equipment cabinet is consistent with its not having granted exclusive possession (if it had, the covenant about the cabinet would not be needed). The right to inspect the equipment on notice is about inspection of the equipment, not about possession. The provisions for fee review, the warranty of title and the alienation covenant are perfectly consistent with a licence. The contracting out of theLandlord and Tenant Act 1954 is no more determinative of the matter than is the declaration that the agreement is not a lease; the parties have expressed themselves both ways, but the substantive provisions of the agreement make it clear that this is a licence not a lease. 60 Ms Tozer QC argued that the demise itself is restricted to the exclusion zones and to the area occupied by the cabinet. The difficulty with that is that when the parties entered into the primary Code agreement they did not know where the exclusion zones were; the first claimant was obliged to provide them. And the plan shows only the proposed location of the cabinet. So it is impossible to regard the agreement as conferring exclusive possession of any defined area. Moreover, the subject matter of the primary Code agreement is the whole rooftop. To regard it as a lease of the area occupied by the cabinet and of the exclusion zones, with the rest of the rooftop being subject to ancillary rights perhaps by way of licence or easement, is an unrealistic description and a mischaracterisation of the agreement. This was a licence agreement extending to the whole roof.”
“43. The absence of the provision of a key to the Respondent or its predecessor in title is a red herring. The factual background – the installation of electronic communications apparatus and business common sense are crucial. As the signs observed by Mr Powell indicate “NO ENTRY UNAUTHORISED PERSONS” and “CAUTION RADIO TRANSMITTERS OPERATING”
“42. The obligation in both agreements is to fence the equipment. It is not an obligation to fence the site. It is clear that the intention of the parties that it was the Equipment that was to be protected. The incidental consequence of course is that the site was enclosed. But that was not the intention of the parties. The operator wished to keep its valuable Equipment safe from the problem of “rural” crime and the site owner wished to ensure that livestock and potentially anyone walking in the fields was not injured by the presence of high voltage electrical Equipment. The circumstances are different from Seddon v Smith. The intention was not possession of the site but protection of the Equipment.”
“4.1 The Owner shall permit Orange its employees agents and independent contractors full and free access on reasonable notice (except in emergency including emergency maintenance when no notice shall be required) to all parts of the Premises as are reasonably necessary for the installation operation maintenance repair and renewal of the PCN Equipment at all times provided that all such persons will comply with such reasonable security and safety procedures as are required by the Owner and Orange agrees to meet all additional reasonable costs incurred by the Owner in providing such access. 4.2 Orange shall permit the Owners reasonable access to the Site by prior appointment for inspection purposes only.”
“4.1 Orange shall permit the Owner reasonable access to the Telecommunications Equipment by prior appointment for inspection purposes only.”
“7.3 On the termination of this Agreement however caused Orange will vacate the Site and remove therefrom all PCN Equipment and shall if required by the Owner reinstate the Site to its former state and condition as at the date hereof to the reasonable satisfaction of the Owner.” “7.5 For the avoidance of doubt the PCN Equipment shall belong to Orange as if it were a tenant’s fixture.”
“7.2 Upon vacating the Site Orange shall remove therefrom all of the Telecommunications Equipment and shall if required by the Owner reinstate the Site to its former state and condition as at the date hereof (fair wear and tear excepted) to the reasonable satisfaction of the Owner.” “7.7 For the avoidance of doubt the Telecommunications Equipment shall remain the property of Orange at all times.”
“64 On the face of it, those three characteristics are present here, in all the claimants’ cases. First, whether or not the huts are chattels (which I have already discussed above), in practice they occupy the same space throughout the whole time that they are in use. That means that the land which they sit on is not available for occupation or any other use by the landowner, who is therefore excluded. Accordingly, where a landowner grants the right to another person to site a hut or chalet of this kind, movable in practice only on the termination of the right, on his land, he is in substance granting a right to exclusive possession. Whilst that right subsists and is being enjoyed, the landowner cannot possibly use or exploit the land in any other way. It is in this sense like a claimed easement to park a car in a specified parking space: Batchelor v Marlow [2003] 1 W.L.R. 764, CA.”
“However, clauses 7.5 and 7.7 are also consistent with a bundle of rights to install electronic communications equipment as set out in the other terms of both agreements. The factual matrix is crucial. Under both the 1997 and 2002 Agreements there is a distinction between use of land in accordance with a bundle of rights and occupation of that land.”
“44. As Mr Read argued on behalf of the claimants, the circumstances in which Code rights may be required are diverse, and it is not surprising that Parliament should not have adopted a prescriptive approach to the form in which they may be granted. At one end of the spectrum Code rights may involve going on to land for a short period to cut back trees or to carry out a survey (which was the full extent of the Code right sought in Cornerstone Telecommunications Infrastructure Ltd v The University of London) for which it would not be necessary to acquire an interest in land. At the other end Code rights may involve keeping cabinets, masts and other electronic communications apparatus installed on land for a period of years, thereby effectively excluding the owner of the land from the area required. It may not be essential that such extensive rights be granted by lease, but the evidence of practice under the old code demonstrates that it will often be convenient. 45. On the other hand, the right to keep equipment installed on land does not necessarily involve a grant of exclusive possession. For example, the land on which an automated teller machine is located in a supermarket is capable of being concurrently in the occupation of the bank which owns the machine and the store which hosts it and to involve no grant of exclusive possession: see Cardtronics Europe Ltd v Sykes (VO)[2018] EWCA Civ 2472 at [81].”
“2.2 Notwithstanding the provisions of clause 2.1 Orange may terminate this Agreement at any time on not less than 3 months’ prior written notice expiring on a Payment Day in the event of circumstances arising such that the Site is no longer suitable for the operation of PCN Equipment including (but not limited to) the erection of new buildings or environmental changes to the area in which the Site is located or the complete or partial destruction of the Site. 2.3 In the event that a redevelopment of the Site is to take place the Owner agrees to consult with Orange and agree to a suitable relocation of its PCN Equipment with the Premises. If a relocation is not possible then the Owner shall have the right to terminate this Agreement at any time upon giving not less than 12 months prior written notice to Orange.”
“2.3 Orange may terminate this Agreement at any time giving the Owner not less than 3 months prior written notice in the event of circumstances arising such that the Site is no longer suitable in Orange’s reasonable opinion for the operation of the Telecommunications Equipment including (but not limited to) the erection of new buildings or environmental changes to the area in which the Site is located or the complete or partial destruction of the Site. 2.4 If at any time before the expiry of the fifth year of the Term the Owner requires to carry out any refurbishment, alteration or improvement to any part of the premises or any redevelopment as defined inSection 55 of the Town and Country Planning Act 1990 upon any part of the Premises upon which the Telecommunications Equipment is situated and has (if necessary) obtained valid planning permission for the same but is prevented from carrying out such work or redevelopment by reason of the existence of the Telecommunications Equipment the Owner may serve on Orange notice (“the Diversion Notice”) requiring the Telecommunications Equipment to be relocated upon the Premises within a timetable to be agreed between the parties PROVIDED THAT Orange shall receive a minimum of 24 months notice of such relocation (such notice to expire on or before expiry of the fifth year of the Term). 2.5 The Owner will endeavour to relocate the Telecommunications Equipment in a location which is not less satisfactory to Orange than its position as shown in the Plan and shall take account of Orange’s reasonable requirements in this respect. Upon expiry of a Diversion Notice Orange will at the Owners expenses relocate the Telecommunications Equipment in accordance with the said timetable will make good any damage caused to the Site and the Premises to the reasonable satisfaction of the Owner. If pursuant to these provisions the Telecommunications Equipment is relocated on another part of the Premises and this new location proves to be unsuitable for the operation of the Telecommunications Equipment then Orange may by written notice terminate this Agreement with immediate effect. If pursuant to these provisions the Telecommunications Equipment is removed from the premises this Agreement shall automatically terminate and the obligations of the Parties under this Agreement shall cease.”
“10.1 It is the intention of the parties that this Agreement shall continue to bind their respective successors in title”
“10.1 This Agreement shall bind the respective successors in title of the parties and those deriving title under them.”
“(3) If a right falling within sub-paragraph (1) above has been conferred by the occupier of any land for purposes connected with the provision, to the occupier from time to time of that land, of any telecommunication services and- (a) the person conferring the right is also the owner of the freehold estate in that land or is a lessee of the land under a lease for a term of a year or more, or (b) in a case not falling within paragraph (a) above, a person owning the freehold estate in the land or is a lessee of the land under a lease for a term of a year or more has agreed in writing that his interest in land should be bound by the right, then, subject to paragraph 4 below, that right shall (as well as binding the person who conferred it) have effect, at any time when the person who conferred it or a person bound by it under sub-paragraph (2)(b) or (4) of this paragraph is the occupier of the land, as if every person for the time being owning an interest in that land had agreed in writing to the right being conferred for the said purposes and, subject to its being exercised solely for those purposes, to be bound by it. (4) In any case where a person owning an interest in land agrees in writing (whether when agreeing to the right as occupier or for the purposes of sub-paragraph (3)(b) above or otherwise) that his interest should be bound by a right falling within sub-paragraph (1) above, that right shall (except in so far as the contrary intention appears) bind the owner from time to time of that interest and also- (a) the owner from time to time of any other interest in the land, being an interest created after the right is conferred and not having priority over the interest to which the agreement relates; and (b) any other person who is at any time in occupation of the land and whose right to occupation of the land derives (by contract or otherwise) from a person who at the time the right to occupation was granted was bound by virtue of this sub-paragraph.” (a) the person conferring the right is also the owner of the freehold estate in that land or is a lessee of the land under a lease for a term of a year or more, or (b) in a case not falling within paragraph (a) above, a person owning the freehold estate in the land or is a lessee of the land under a lease for a term of a year or more has agreed in writing that his interest in land should be bound by the right, then, subject to paragraph 4 below, that right shall (as well as binding the person who conferred it) have effect, at any time when the person who conferred it or a person bound by it under sub-paragraph (2)(b) or (4) of this paragraph is the occupier of the land, as if every person for the time being owning an interest in that land had agreed in writing to the right being conferred for the said purposes and, subject to its being exercised solely for those purposes, to be bound by it. (a) the owner from time to time of any other interest in the land, being an interest created after the right is conferred and not having priority over the interest to which the agreement relates; and (b) any other person who is at any time in occupation of the land and whose right to occupation of the land derives (by contract or otherwise) from a person who at the time the right to occupation was granted was bound by virtue of this sub-paragraph.”
“23. In Rhone v Stephens [1994] 2 A.C. 310 a successor in title to the original covenantee sought to enforce a covenant to repair a roof against the successor in title to the original covenantor. Lord Templeman, with whom the other four members of the Appellate Committee agreed, noted that equity cannot, any more than the law, compel an owner to comply with a positive covenant entered into by his predecessor in title. He then referred to the ‘pure principle of benefit and burden’ enunciated by Sir Robert Megarry V-C and continued: “I am not prepared to recognise the "pure principle" that any party deriving any benefit from a conveyance must accept any burden in the same conveyance. Sir Robert Megarry V.-C. relied on the decision of Upjohn J. in Halsall v. Brizell[1957] Ch. 169 . In that case the defendant's predecessor in title had been granted the right to use the estate roads and sewers and had covenanted to pay a due proportion for the maintenance of these facilities. It was held that the defendant could not exercise the rights without paying his costs of ensuring that they could be exercised. Conditions can be attached to the exercise of a power in express terms or by implication. Halsall v. Brizell was just such a case and I have no difficulty in wholeheartedly agreeing with the decision. It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantor's successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right. In Halsall v. Brizell there were reciprocal benefits and burdens enjoyed by the users of the roads and sewers. In the present case clause 2 of the 1960 conveyance imposes reciprocal benefits and burdens of support but clause 3 which imposed an obligation to repair the roof is an independent provision. In Halsall v. Brizell the defendant could, at least in theory, choose between enjoying the right and paying his proportion of the cost or alternatively giving up the right and saving his money. In the present case the owners of Walford House could not in theory or in practice be deprived of the benefit of the mutual rights of support if they failed to repair the roof.”
“27. Rhone v Stephens and Thamesmead Town Ltd v Allotey are binding on us. They establish a number of propositions the application of which are exemplified in the other cases to which I have referred, namely Halsall v Brizell, that part of Tito v Waddell which was not disapproved in Rhone v Stephens, Jenkins v Young Bros Transport Ltd and Baybut v Eccle Riggs Country Park Ltd. In my view those propositions are: (1) The benefit and burden must be conferred in or by the same transaction. In the case of benefits and burdens in relation to land it is almost inevitable that the transaction in question will be effected by one or more deeds or other documents. (2) The receipt or enjoyment of the benefit must be relevant to the imposition of the burden in the sense that the former must be conditional on or reciprocal to the latter. Whether that requirement is satisfied is a question of construction of the deeds or other documents where the question arises in the case of land or the terms of the transaction, if not reduced to writing, in other cases. In each case it will depend on the express terms of the transaction and any implications to be derived from them. (3) The person on whom the burden is alleged to have been imposed must have or have had the opportunity of rejecting or disclaiming the benefit, not merely the right to receive the benefit.” (1) The benefit and burden must be conferred in or by the same transaction. In the case of benefits and burdens in relation to land it is almost inevitable that the transaction in question will be effected by one or more deeds or other documents. (2) The receipt or enjoyment of the benefit must be relevant to the imposition of the burden in the sense that the former must be conditional on or reciprocal to the latter. Whether that requirement is satisfied is a question of construction of the deeds or other documents where the question arises in the case of land or the terms of the transaction, if not reduced to writing, in other cases. In each case it will depend on the express terms of the transaction and any implications to be derived from them. (3) The person on whom the burden is alleged to have been imposed must have or have had the opportunity of rejecting or disclaiming the benefit, not merely the right to receive the benefit.”
“(5) A right falling within sub-paragraph (1) above shall not be exercisable except in accordance with the terms (whether as to payment or otherwise) subject to which it is conferred; and, accordingly, every person for the time being bound by such a right shall have the benefit of those terms.”
“(1) A code right is exercisable only in accordance with the terms subject to which it is conferred.”
“(4) From the time when the assignment of an agreement under Part 2 of this code takes effect, the assignee is bound by the terms of the agreement.”
“60. Suppose therefore that B duly assigns its code agreement to C. In order to ensure that C “comes to stand in the shoes of”
“3.22 The revised Code will need to make specific provisions as regards the assignment of other agreements conferring Code Rights, in order effectively to pass on the burden to the assignee. For example, the Code Operator to whom a wayleave is assigned should be responsible for the payment of rent for the period after the assignment, not the assignor.”
“28. I find the submissions of Mr Radley-Gardner in relation to Paragraph 12(1) to be persuasive and, in the event that I am wrong in my own analysis of Gencomp and Paragraph 33, I adopt his analysis.”
“30. I am satisfied that Orange would have had access to the very best legal advice available at the time the agreements were entered into. It was entering into a long-term commercial contract involving very substantial capital outlay. If it was intended that Orange was to have the benefit of the 1954 Act it would have said so. A licence is not protected under the 1954 [Act]. If Orange were indeed trying “to have their cake and eat it” there would be a real risk that either agreement might be construed as a licence and 1954 Act protection lost. Why would Orange take that risk jeopardising coverage? The site providers should not be left out of consideration either. Surely Messrs Pinkerton and Thornhill would have wanted clarity – would they be able to obtain possession at the end of the term or would they be left with a 1954 Act protected tenant? There are considerable risks of “unintended consequences” for both parties. The complete absence of any reference to the 1954 Act or indeed to any contracting out, points strongly to the intention of the parties to enter into an agreement for installation of telecommunications equipment rather than a lease subject to the 1954 Act. Orange would, of course, have been well aware of its rights to apply under paras. 5 and 21 of the Old Code on expiry of the term.”
“80. My decision is finely balanced. There are clearly clauses to be found in “Terms and Conditions” attached and incorporated into the 1997 Agreement and contained in Schedule 1 to the 2002 Agreement which are resonant of a lease. However, those terms and conditions are, in my judgment, outweighed by clause B to both Agreements. The intention of the parties was that the operator would be granted a bundle of rights in connection with the installation and operation of PCN/Telecommunications Equipment. There is no grant of exclusive possession with a corresponding interest in land. The “lift and shift” provisions provide a qualified right for the site owner, in consultation with Orange, to more the Site to another location within the Premises (of which the Site forms a part). The Plans attached to the agreement do not demarcate the site. The Plans are in fact technical drawings of the PCN/Telecommunications Equipment. The quite extraordinary fencing and the almost “Orwellian” security observed by Mr Powell are not intended to demarcate the site or keep the landlord out. Fencing and security is present to protect the PCN/Telecommunications Equipment in both the 1997 and 2002 Agreements. The Site is secondary. 81. I find that neither the 1997 nor the 2002 Agreement grant exclusive possession. That does not mean that they grant purely personal contractual rights either. Both are telecommunications agreements. Such agreements are not leases to which Part 2 of theLandlord and Tenant Act 1954 applies.”
“2.1 This Agreement shall come into effect on the date shown above and shall continue for no less than the Minimum Term. It may be terminated by either party giving to the other not less than 12 months’ notice in writing to expire at any time on or after the expiry of the Minimum Term.”
“33 Following the decision of the House of Lords in the Prudential case[1992] 2 AC 386 , the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences. The position appears to have been as follows: (i) an agreement for a term, whose maximum duration can be identified from the inception can give rise to a valid tenancy; (ii) an agreement which gives rise to a periodic arrangement determinable by either party can also give rise to a valid tenancy; (iii) an agreement could not give rise to a tenancy as a matter of law if it was for a term whose maximum duration was uncertain at the inception; (iv) (a) a fetter on a right to serve notice to determine a periodic tenancy was ineffective if the fetter is to endure for an uncertain period, but (b) a fetter for a specified period could be valid.”
“35 However, I would not support jettisoning the certainty requirement, at any rate in this case. First, as the discussion earlier in this judgment shows, it does appear that for many centuries it has been regarded as fundamental to the concept of a term of years that it had a certain duration when it was created. It seems logical that the subsequent development of a term from year to year (i e a periodic tenancy) should carry with it a similar requirement, and the case law also seems to support this. 36 Secondly, the 1925 Act appears to support this conclusion. Having stated in section 1(1) that only two estates can exist in land, a fee simple and a term of years, it then defines a term of years in section 205(1)(xxvii) as meaning “a term of years ... either certain or liable to determination by notice [or] re-entry”; as Lord Templeman said in the Prudential case[1992] 2 AC 386 , 391B, this seems to underwrite the established common law position.”
“87 Periodic tenancies obviously pose something of a puzzle if the law insists that the maximum term of any leasehold estate be certain. The rule was invented long before periodic tenancies were invented and it has always been a problem how the rule is to apply to them. In one sense the term is certain, as it comes to an end when the week, the month, the quarter or the year for which it has been granted comes to an end. But that is not the practical reality, as the law assumes a re-letting (or the extension of the term) at the end of each period, unless one or other of the parties gives notice to quit. So the actual maximum term is completely uncertain. But the theory is that, as long as each party is free to give that notice whenever they want, the legal maximum remains certain. Uncertainty is introduced if either party is forbidden to give that notice except in circumstances which may never arise. Then no one knows how long the term may last and indeed it may last for ever.”
“88 These rules have an Alice in Wonderland quality which makes it unsurprising that distinguished judges have sometimes had difficulty with them. It is intriguing to read, in Doe d Warner v Browne (1807) 8 East 165, 167, that Lord Mansfield had once “thrown out” (obviously meaning “suggested”) the “notion of a tenancy from year to year, the lessor binding himself not to give notice to quit”
“17 I would have concerns therefore that, at this late stage, the 1925 Act should be thought to render invalid leases such as those construed and considered in the earlier cases, of which I have cited three examples. Quite to the contrary, it seems to me that a term such as that granted (for a fixed period of months and then from month to month) falls clearly within the genus of the statutory descriptions in section 205(1)(xxvii), either as expressly covered by the words of the paragraph itself or because the paragraph envisages the possibility of creating terms of years, including a term for less than a year and a term from year to year (i e a periodic tenancy). I see no good reason why the statute should be taken to have rendered impossible the creation of an amalgam of the two, as had been familiar to the common law for centuries. 18 Again, in the Mexfield case[2012] 1 AC 955 , para 55, Lord Neuberger MR said that in Breams Property Investment Co Ltd v Stroulger[1948] 2 KB 1 the grant of a periodic tenancy with a fetter on the landlord’s right to determine for three years had been found by this court to have been valid and was the equivalent of a fixed term of three years followed by a periodic tenancy: see also Megarry & Wade, The Law of Real Property, 8th ed (2012), p 775.”
“93 So we have now reached a position which is curiouser and curiouser. There is a rule against uncertainty which applies both to single terms of uncertain duration and to periodic tenancies with a curb on the power of either party to serve a notice to quit unless and until uncertain events occur. But this rule does not matter if the tenant is an individual, because the common law would have automatically turned the uncertain term into a tenancy for life, provided that the necessary formalities were complied with, before theLaw of Property Act 1925 . A tenancy for life was permissible at common law, although of course it was quite uncertain when the event would happen, but it was certain that it would. I suppose at the time of the Hundred Years’ War there was uncertainty both as to the “when” and the “whether” it would ever end. Be that as it may, a tenancy for life is converted into a 90-year lease by the 1925 Act.”
“55 I indicated earlier in this judgment that this conclusion would apply irrespective of whether the purported tenancy created by the agreement was simply for an indeterminate term or was a periodic tenancy with a fetter on the landlord’s right to determine. There is no difficulty if the former is the right analysis. If the latter is correct, then there is a monthly tenancy which the landlord is unable to determine unless he can rely on one or more of the grounds in clause 6. In the Breams case[1948] 2 KB 1 , the court concluded that a periodic tenancy with a fetter on the landlord’s right to determine for three years was valid. It seems to me that the term thereby created was equivalent to a fixed term of three years (subject to a restricted right of determination in the landlord and an unrestricted right of determination by the tenant) followed by a periodic tenancy.”
“The Breams Property case can, however, be explained on the basis that although phrased as a quarterly tenancy with a restriction on the landlord’s right to serve notice to quit, in effect it simply turned the quarterly tenancy into a three-year term terminable by the tenant on notice before that, to be followed by a normal quarterly tenancy after that.”
“When the agreement in the present case was made, it failed to grant an estate in the land. The tenant however entered into possession and paid the yearly rent of£30 reserved by the agreement. The tenant entering under a void lease became by virtue of possession and the payment of a yearly rent, a yearly tenant holding on the terms of the agreement so far as those terms were consistent with the yearly tenancy. A yearly tenancy is determinable by the landlord or the tenant at the end of the first or any subsequent year of the tenancy by six months' notice unless the agreement between the parties provides otherwise.”
“66 If the agreement cannot give rise to a tenancy, then, if it is not a contractual licence, the only right that Ms Berrisford could claim would be that of a periodic tenant on the terms of the written agreement in so far as they are consistent with a periodic tenancy, because she has been in possession purportedly under the agreement, paying a weekly rent to Mexfield. It is worth briefly considering why she would be a periodic tenant on this basis, not least because it is Mexfield’s contention that this is the right analysis. 67 It would be because the law will infer a contract on these terms from the actions of the parties, namely the terms they purported to agree in the agreement, and Ms Berrisford’s enjoyment of possession and payment of rent. But the ultimate basis for inferring a tenancy (and its terms) is the same as the basis for inferring any contract (and its terms) between two parties, namely what a reasonable observer, knowing what they have communicated to each other, considers that they are likely to have intended. Given that no question of statutory protection could arise, it seems to me far less likely that the parties would have intended a weekly tenancy determinable at any time on one month’s notice than a licence which could only be determined pursuant to clauses 5 and 6. 68 Since writing this, I have read what Lord Mance and Lord Clarke of Stone-cum-Ebony JJSC have written in connection with this point, and I respectfully agree with them. It is also interesting to read Lord Hope of Craighead DPSC’s judgment, which demonstrates that the Scottish courts have also encountered difficulty when grappling with interests of uncertain duration, and seem to have come up with a similar answer.”
“102 On the hypothesis I am presently considering, those three characteristics were not all present. The basis for asserting that there was a contractual tenancy therefore falls away. But the contract was valid as such. There is no reason not to give it effect according to its terms. As a matter of legal categorisation, because it was not a tenancy, it can only involve a licence. Its terms precluded the giving by Mexfield of notice to terminate, except in circumstances falling within clause 6 of the agreement. 103 To force the contract into the category of tenancy, by rewriting its essential terms to provide for a periodic monthly tenancy terminable on a month’s notice, would be to substitute for the agreement that the parties have made a wholly different contract. It would be to treat the first two of the three characteristics of a tenancy mentioned above as sufficient by themselves and as displacing any need to satisfy the third. It would be to insist on terminology (such as the agreement’s references to letting and taking possession ”from month to month” and “this tenancy”) over substance (the parties’ express limitation of the right to terminate and the consequent absence of an essential characteristic of a tenancy).”
“109 In this regard I agree with the views of Lord Neuberger MR expressed at paras 57—64 above. Ms Berrisford has been living in the property for a considerable time and, except for a short period referred to by Lord Neuberger MR at para 7, has been paying rent at the rate provided for in the contract. It would to my mind be bizarre for the law to imply or infer a contract between the parties to the effect that there was a periodic tenancy between them at the contractual rate. That would mean that Mexfield can bring the contract to an end by giving one month’s notice to quit. I see no basis for such an inference or implication. It would be contrary to the express terms of the agreement, namely that the only way that Mexfield can determine it is under clause 6. There is no need for any process of implication or inference because the parties have expressly agreed the position. In particular, Ms Berrisford at no time agreed that Mexfield could give her a month’s notice to quit. If, as a matter of law, the parties have created a licence and not a tenancy, so be it.”
“The 2002 Agreement took effect as a lease to whichPart II of the Landlord and Tenant Act 1954 applies.”
“Following the decision of the House of Lords in the Prudential case[1992] 2 AC 386 , the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences.”