Vodafone Limited v Gencomp (No 7) Limited & Anor

Under the Electronic Communications Code, only the occupier of land, or the person who would be occupier if the operator’s presence were ignored, can confer new code rights. A concurrent lessee of the reversion is not a party to the existing code agreement and cannot use the renewal machinery in Part 5. Where a concurrent lease makes Part 5 unavailable, however, the operator may use Part 4 to obtain an imposed conferring agreement from the concurrent lessee. The Tribunal may then make the rights binding on the superior landlord. It may also order a tripartite agreement, although bilateral agreements may be more convenient.

Vodafone held a lease of part of the Old Fire Station, granted in 2003 by Publico Ltd, and sought renewal of its electronic communications rights. Before the lease expired, Potting Shed Trading Ltd granted AP Wireless II (UK) Ltd a concurrent lease of part of the site. Gencomp later acquired the freehold.

The parties agreed that the Tribunal should determine preliminary issues concerning the status of the original agreement under the transitional provisions, the proper parties to a renewal or new agreement, the interaction between Parts 4 and 5 of the Code, and the Tribunal’s jurisdiction to order a tripartite agreement.

1. Subsisting agreement. The 2003 lease was a subsisting agreement when the new Code commenced. It was to be inferred from the lease, including its warranty of title, that Publico had been the occupier when it granted the rights. The evidential burden of showing otherwise would fall on a site provider resisting renewal.
2. Concurrent lease and Part 5. Under paragraph 10, a successor in title to the original grantor is treated as a party to the code agreement. A concurrent lessee falls instead within paragraph 10(2)(b). It is bound by the rights but is not a party, and is not to be treated as one under paragraph 10(3). APW therefore could neither terminate, modify or renew the original agreement under Part 5 nor receive a paragraph 33 notice as the other party.
3. Part 4 route. Gencomp could not confer new rights because it no longer had possession or occupation of the relevant land. The Tribunal could not impose an ineffective conferring agreement on Gencomp, nor make such an agreement effective by binding APW to it. Nevertheless, the Code had to accommodate the anomaly created by the concurrent lease. Since Part 5 was unavailable despite the contractual term having ended, Part 4 could be used to impose a new conferring agreement between Vodafone and APW.
4. Binding superior landlord. Rights conferred by APW could be made binding on Gencomp under paragraph 34. The Tribunal’s jurisdiction was limited by what the parties could achieve voluntarily, but APW possessed the necessary rights to confer the new rights and Gencomp could be bound by them.
5. Tripartite agreement. The Tribunal had jurisdiction to order a single agreement in which one party conferred rights, another party received them, and a third party was bound by them. The practical form of the agreement was left for the final hearing.