Vodafone Limited v Icon Tower Infrastructure Limited & Anor

For a termination ground based on breach, an infrastructure provider acting as the operator’s agent does not thereby share the operator’s code rights or occupy the site in its own business capacity. Contractual management arrangements must be construed in their commercial and documentary context.

Redevelopment under the Communications Act 2003 requires intended future works that amount to redevelopment of land. Mere demolition, or the attachment of active apparatus to existing passive infrastructure, is insufficient. The intended works must begin within a reasonable time after termination.

Under the public-benefit test, loss of an investment may be compensable in money. The continued availability of a code-rent site can provide a substantial public benefit.

Vodafone Limited sought renewal of a 2003 telecommunications site agreement at Steppes Hill Farm. Icon Tower Infrastructure Limited, the current freeholder, served termination notices and relied on three grounds under paragraph 31(4) of the Electronic Communications Code: alleged substantial breach, intended redevelopment, and failure of the paragraph 21 public-benefit test.

The Tribunal determined those grounds as preliminary issues. Icon contended that Cornerstone Telecommunications Infrastructure Ltd had become the effective occupier through management and infrastructure arrangements, and that construction of a new tower on a nearby site required removal of Vodafone’s mast. The central questions were whether those arrangements breached the agreement, whether the outstanding works were redevelopment within paragraph 31(4)(c), and whether a new agreement could satisfy paragraph 21.

1. All three termination grounds failed. Icon could not rely on paragraph 31(4)(a), (c), or (d) of the Code. The Tribunal therefore rejected its preliminary objections to a new agreement.

2. There was no breach of the alienation clause. Construed as a whole, the contribution and services agreements appointed CTIL to manage the site as Vodafone’s agent pending any consensual transfer. They did not transfer or share Vodafone’s rights, transfer the relevant site business, or make CTIL the occupier conducting its own business. CTIL was accordingly not the occupier for paragraph 9(1) purposes.

3. For paragraph 31(4)(c), the Tribunal held that neighbouring land is not confined to land adjoining the code site. It is a fact-sensitive question of geographical proximity. The other sites within the same field were capable of being neighbouring land.

4. However, redevelopment requires a change to land. The completed construction works on the Orange Site were redevelopment, but Icon could not at the decision date intend works already completed. Removal of the existing masts was demolition only and was not sufficiently connected to the completed construction works to become redevelopment. Installing active apparatus on the new tower was also not redevelopment. Any intended redevelopment must commence within a reasonable time after the code agreement ends.

5. The paragraph 21 conditions were met. Icon’s potential loss of its investment in the new tower was capable of monetary compensation. The public benefit of Vodafone continuing to provide services from a site at a Code rent outweighed that prejudice, notwithstanding the availability of Icon’s alternative tower at a commercial rent.

This was a first-instance determination of preliminary issues in the Upper Tribunal.

• Upper Tribunal (Lands Chamber): Vodafone’s earlier renewal reference, issued on 17 March 2023, was transferred to the First-tier Tribunal and later transferred back. Its termination reference of 7 November 2023 was determined on the stated preliminary issues.