Finally, we have clarity on how the Tribunal will deal with the termination notices served pursuant to the Code.
This is the first case heard by the Upper Tribunal in which the termination grounds under Part 5 of the Electronic Communications Code (the Code) were considered.
Background
The operator, Vodafone, had had a code agreement of the site since 2003, and had sought to renew the agreement pursuant to paragraph 33 of the Code.
The site provider, Icon Tower, opposed the renewal and served a termination notice on Vodafone pursuant to Part 5.
Icon Tower sought to terminate the code agreement on the following grounds, namely that:
- a) Vodafone were in breach of the alienation provisions in the code agreement by way of its sharing arrangements with CTIL;
- b) Icon Tower intended to redevelop all or part of the land to which Vodafone's code agreement related, or neighbouring land, and could not reasonably do so unless the agreement with Vodafone came to an end; and
- c) The test under para 21 of the Code for the imposition of a new agreement had not been met on the basis that CTIL was the occupier (and not Vodafone) or that the conditions in paragraph 20 of the Code had not been met.
Decision
The Tribunal held that there had not been a breach of the alienation provisions in the agreement. It found that Vodafone's relationship with CTIL was pursuant to a services contract and did not have the effect of sharing any code rights with them.
With regards to the redevelopment ground, there were several issues for the Tribunal to decide, one of which was what amounted to 'neighbouring land' for the purposes of the termination provisions of the Code. The Tribunal held that whether land is 'neighbouring land' for the purpose of the Code will come down to fact, based on geographical proximity.
Despite the Tribunal finding that the works here were going to be undertaken on 'neighbouring land', given some of the works had already completed and those remaining did not constitute works of redevelopment within the meaning of paragraph 31(4)(c) of the Code, Icon Tower were unable to demonstrate that they had the requisite intention to redevelop, and the ground failed.
Icon Tower were also unsuccessful on ground (c).
Outcome
As all three grounds failed, the termination notice was dismissed, and Vodafone were able to renewal their code agreement.
The decision provides clarity on what is required by a site provider seeking to rely on the ground of termination under the Code and is a must read for all those seeking to rely on a part 5 termination notice.
