This decision will affect both site providers and operators where there is an existing electronic communications agreement which requires renewal, and an entity party to the originally granted agreement, or its successor in title, has subsequently granted a concurrent lease of the same land to a third party.

The decision is therefore of significance for all sites where concurrent leases or other complex title structures may be present.

Prior to the appeal, the Upper Tribunal determined that paragraph 10 of the Code; which stipulates the entities who are treated as a party to a Code agreement; was an exhaustive list. This effectively locked out third parties; who had since acquired an interest in the land; from using the renewal procedure under part 5 of the Code.

In practice this meant any third party operators who may have had an agreement assigned to them would need to use part 4 of the Code to obtain new Code rights rather than a renewed agreement for land they already occupy, and locked out any third party site providers (effectively the existing operator’s landlord due to the grant of a concurrent lease) from being able to grant renewed rights leaving them subject to a much stricter 28 day notice period under part 4.

As part 5 would have provided for a 6 month notice period to agree a renewal lease, should the position have remained the same site providers were under immense pressures and threats of imminent expensive litigation in the Upper Tribunal.

The Court of Appeal found that AP Wireless II (UK) Ltd were not a successor in title but were otherwise a party to the agreement for the purposes of paragraph 33, as the Code is intended to work in such a way that paragraph 10 of the Code does not define exhaustively who is to be treated as a party to the agreement.

The Court of Appeal therefore held that intermediate lessees, who are not successors in title to the original site provider nor a party to the original Code agreement, will be able to exercise the procedures for renewal and termination under part 5 of the Code.

This decision means that the 6-month notice period under paragraph 33 will apply rather than the 28 days which would apply should an operator issue notice requesting new Code rights under part 4. Additionally, concurrent lessees who may wish to redevelop the land will have access to the termination procedure under paragraph 31 of the Code, giving developers a much-needed element of control over land earmarked for significant works where electronic communications apparatus may have been present at the point of entering into the concurrent lease.

The Court of Appeal decision clarifies the correct procedure for termination and renewal where there is an intermediate lessee and concurrent lease, it will therefore be welcomed by site providers and Code operators alike.

The decision should streamline the renewal process and remove the need for multiple notices resulting in concurrent litigation proceedings, whilst unlocking the ability for third party developers subject to a concurrent lease to terminate agreements under part 5.

At Knights, our specialist telecoms team can advise and assist with implementing these procedures for renewal and termination in an ever-changing and fast paced digital world. Please do not hesitate to contact us should you be subject to a concurrent lease, or part of a complex title structure and require advice as to any existing telecommunications equipment at your site.