Clarity provided on termination for redevelopment under the Electronic Communications Code

The recent case of Vodafone Limited v Icon Tower Infrastructure Limited and AP Wireless II (UK) Limited has provided further clarity on the landowner’s grounds for termination of a code agreement. Termination of an agreement is a complex affair often met by an operator looking to renew an agreement with the possibility of a new (often less favourable) agreement being imposed upon the landowner by the Lands Tribunal of Scotland.

Vodafone sought to renew its existing code agreement for a mobile communications site at Steppes Hill Farm, Kent, which had expired in 2018 but continued under transitional provisions. Icon, the landowner, opposed the renewal, citing three grounds of termination:

• substantial breaches by Vodafone
• that the landowner had an intention to redevelop the site
• a claim that Vodafone was not entitled to a new code agreement.​

The code provides a landowner with limited rights to terminate an agreement and one used most often is under para 31(4)(c) being that the landowner intends to redevelop all or part of the land (or any neighbouring land) to which the code agreement relates and could not reasonably do so unless the code agreement comes to an end. It’s worth noting here that whilst Icon was the landowner, it was also an infrastructure provider, and the redevelopment that was proposed was the removal of the existing mast and the erection of a new larger tower.

Redevelopment

The code does not define “redevelopment” or what works are required, when those might occur and what a “settled intention” might be. Whilst the Upper Tribunal ruled in favour of Vodafone, allowing the renewal of its agreements for the sites in question. The decision provided significant guidance on the application of termination grounds under the Electronic Communications Code, particularly concerning redevelopment and public benefit considerations.

In terms of redevelopment, a landowner must:-

1. Have a settled intention to carry out the work of redevelopment which is not likely to be changed and have a reasonable prospect of doing so.
2. Not use the proposed redevelopment as a means to prevent the operator from exercising their rights.
3. Be able to provide evidence of their intention to redevelop – which may include evidence of the landowner’s commercial objectives or from a board minute for example.
4. “Redevelopment” is broad and can include a wide variety of works, but it also implies some kind of change in the land, which is the subject of the redevelopment, i.e. what was there before is replaced by something new.
5. The landowner must intend to carry out the works within a reasonable time of the termination of the tenancy and can’t have already completed the works prior to the termination of the Lease.

The Tribunal’s decision underscores the high threshold that must be met to terminate code agreements, especially on the grounds of redevelopment or public benefit. It highlights the importance of genuine redevelopment intentions and the careful balance between private property rights and the wider public interest in maintaining robust telecom infrastructure.

How we can help

Please contact Karen Craig, Partner, in our Rural team (karen.craig@andersonstrathern.co.uk) if you have any questions regarding the topics explored in this article.