• news-banner

    Expert Insights

Court of Appeal provides clarification on the Electronic Communications Code & Concurrent Leases

The plethora of case law clarifying the interpretation of the Electronic Communications Code (“Code”) introduced by the Digital Economy Act 2017 continues to expand with the latest decision from the Court of Appeal. In Potting Shed Bar Gardens Ltd (formerly known as Gencomp (No.7) Limited) v AP Wireless II (UK) Limited [2023] EWCA Civ 825 the Court of Appeal held that AP Wireless (“APW”) were to be treated as a party to a Code agreement where they had been granted a concurrent lease of a telecoms site . A concurrent lease is a lease that is “slotted in” above an existing lease usually running at the same time as the existing lease. The decision provides welcome clarity for landowners who have granted concurrent leases and closes a potential gap in the legislation.

Facts

In this case, Vodafone, had a lease of a site at the Old Fire Station, Bingley, Yorkshire. In 2018, the landlord (formerly known as “Gencomp”) granted a concurrent lease to APW, the effect of which was that it became the landlord of, and was entitled to receive rents from, Vodafone. The reason for granting such an interest to APW is that they are a mobile phone mast site lease investment firm. Therefore, landlords of telecoms sites receive a lump sum payment in exchange for the right to receive future rent associated with the telecoms agreement.

The contractual term of Vodafone’s Code agreement had come to an end and it wanted to renew its lease under the Code. However, it was unclear what procedure it should follow and whether it should renew it with the freeholder, Gencomp, or with the tenant under the concurrent lease, APW.

First Instance Decision

The Upper Tribunal found that there was a gap in the legislation such that APW was not a party to the Code agreement and so was prevented from taking steps to bring it to an end.

The problem was that the Upper Tribunal found that as APW did not fall within the definitions with the relevant part of the Code it could not make use of Part 5 of the Code which relates to continuation, renewal and termination. However, Gencomp could not make use of this part of the Code either because, due to the concurrent lease, it did not have the right to possession and occupation and so could not confer them on Vodafone. Part 4 of the Code (relating to the power of the Tribunal to impose a Code agreement) could not fix this gap for a landowner but it did mean that the operator could make use of it to seek a new Code agreement.

This obviously caused an issue for landowners who would be unable to bring Code agreements to an end where a concurrent lease was in place. The Tribunal granted permission to appeal this decision to the Court of Appeal.

Decision on Appeal

The Court of Appeal reversed the Upper Tribunal’s decision. It found that whilst APW would not be considered a successor in title to Gencomp it should be treated as a party to the Code agreement, entitling it to a right to terminate the Code agreement under Part 5. This was because the relevant paragraph of the Code containing the definition of who was a party to the Code agreement was not to be considered exhaustive. As a matter of property law, irrespective of the operation of the Code, the original Code agreement was binding on APW and it should therefore be regarded as a party to the agreement.

Comment

This decision provides a welcome solution to what was a potentially significant gap in the Code. It is especially important for landowners and tenants under concurrent leases who can now be reassured that they do have the power to terminate an existing Code agreement. This decision also builds on the guidance given by the Supreme Court in Compton Beauchamp in respect of the approach to be taken when interpreting of the Code. The Courts should consider how and why the regime was intended to work and not simply look at the legal language used.

Our thinking

  • IBA Annual Conference 2025

    Simon Ridpath

    Events

  • Alumni Drinks Reception

    Events

  • London International Disputes Week: Trusts hurt: the fraud lawyer, the trust, and the avenues of attack (and defence)

    Tamasin Perkins

    Events

  • London International Disputes Week: Navigating International M&A Disputes: Insights and Strategies for 2025

    Stephen Burns

    Events

  • Government publishes consultation on Regulations about how rent is calculated under the Landlord and Tenant Act 1954 for agreements with Code operators

    Georgina Muskett

    Quick Reads

  • ESG Duties for Directors: Legal Obligations and Risks Under English Company Law

    Katie Bewick

    Insights

  • Conclusive truth or abusive sleuth - can covert recordings be used in family law proceedings?

    Charlotte Posnansky

    Insights

  • Successors in title bound by predecessors’ boundary demarcation agreement, notwithstanding lack of knowledge

    Emma Preece

    Quick Reads

  • UK Real Estate Opportunities for Asia Capital

    Simon Green

    Events

  • Law Commission publish their recommendations for reform on Wills

    Charis Thornton

    Quick Reads

  • What does the UK Immigration White Paper mean for businesses, families and entrepreneurs?

    Paul McCarthy

    Insights

  • BBC News quotes Emma Preece on a Supreme Court decision around whether people can camp in certain areas of Dartmoor without permission from landowners

    Emma Preece

    In the Press

  • From Tradition to Transaction - The Rise of Private Equity in Family Businesses in the Middle East

    Ahmad Anani

    Insights

  • The UK’s immigration white paper – what does it mean for British Nationals (Overseas)?

    Owen Chan

    Quick Reads

  • Directors’ Disqualification Under the Company Directors Disqualification Act 1986: What UK Directors Need to Know

    Claudine Morgan

    Insights

  • The Financial Times quotes Catrin Harrison on IHT Budget changes and the impact on wealthy UK expats

    Catrin Harrison

    In the Press

  • Property Patter: Applications to discharge or modify restrictions

    Emma Humphreys

    Podcasts

  • Should access be given between exchange and completion?

    Twiggy Ho

    Insights

  • What next for the hydrogen sector?

    Rachael Davidson

    Quick Reads

  • UK Cybersecurity and Resilience Policy Statement April 2025 - Impacts for Managed Services Providers and Data Centres

    Mark Bailey

    Insights

Back to top