Vodafone Ltd v Potting Shed Bar and Gardens Ltd & Anor [2023] EWCA Civ 825 (14 July 2023)

Vodafone Ltd v Potting Shed Bar and Gardens Ltd & Anor [2023] EWCA Civ 825 (14 July 2023)

A concurrent lessee (such as AP Wireless II (UK) Ltd) is to be regarded as a 'party to the agreement' for the purposes of paragraph 33 of the Electronic Communications Code, and thus is the proper party to receive and respond to renewal notices and applications for modification or replacement of code agreements. The Upper Tribunal was wrong to hold otherwise. The categories in paragraph 10(2) are mutually exclusive, and a concurrent lessee is not a 'successor in title' to the freehold, but is nonetheless a party to the agreement by virtue of property law and the structure of the Code.

Citation
[2023] EWCA Civ 825
Parties
Claimant / Respondent to Appeal: Vodafone Ltd; Respondent to Claim: Potting Shed Bar and Gardens Ltd (formerly Gencomp (No.7) Ltd); Respondent to Claim / Appellant in Appeal: AP Wireless II (UK) Ltd
Jurisdiction
England and Wales
Judgment Date
14 July 2023
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From Upper Tribunal (lands Chamber)
Outcome
Appeal allowed
Legal Topics
Electronic Communications Code, Concurrent Leases, Code Rights Renewal, Landlord and Tenant Law, Successor in Title, Party to Code Agreement
Property Law Telecommunications Law Electronic Communications Code Concurrent Leases Code Rights Renewal Landlord and Tenant Law Successor in Title Party to Code Agreement

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Parties

Vodafone Ltd

Claimant / Respondent to Appeal

Potting Shed Bar and Gardens Ltd (formerly Gencomp (No.7) Ltd)

Respondent to Claim

AP Wireless II (UK) Ltd

Respondent to Claim / Appellant in Appeal

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From Upper Tribunal (lands Chamber)

Legal Issues

  1. 1 Whether a concurrent lessee (APW) is a 'party to a code agreement' for the purposes of paragraph 33 of the Electronic Communications Code and thus able to grant or be bound by renewal of code rights;
  2. 2 Whether the Upper Tribunal was correct to hold that renewal could only be sought under Part 4 of the Code and not Part 5;
  3. 3 Interpretation of 'successor in title' and 'party to the agreement' under the Code in the context of concurrent leases.

Ratio Decidendi

A concurrent lessee (such as AP Wireless II (UK) Ltd) is to be regarded as a 'party to the agreement' for the purposes of paragraph 33 of the Electronic Communications Code, and thus is the proper party to receive and respond to renewal notices and applications for modification or replacement of code agreements. The Upper Tribunal was wrong to hold otherwise. The categories in paragraph 10(2) are mutually exclusive, and a concurrent lessee is not a 'successor in title' to the freehold, but is nonetheless a party to the agreement by virtue of property law and the structure of the Code.

Court Disposition

Appeal allowed

Orders

  • Declaration that AP Wireless II (UK) Ltd is a party to the code agreement for the purposes of paragraph 33 of the Electronic Communications Code;
  • Matter remitted to the Upper Tribunal for further determination in accordance with this judgment.