EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd [2021] UKUT 167 (LC)

Summary

A decision from the Upper Tribunal (Lands Chamber) has provided clarity on renewal procedures for existing agreements under the Electronic Communications Code (the Code).

Background

In this claim, EE and Hutchison 3G UK Limited (the Operators) occupy a site pursuant to a “subsisting agreement” under the transitional provisions of the Code.

In 2019, the Operators served notices pursuant to para 33(1) of the Code requesting an agreement from David Paul Stephenson and AP Wireless II (UK) Limited (the Site Providers) to terminate the existing code agreement and entering into a new code agreement, being the Operators' standard form agreement.

An agreement was not reached between the parties following service of the notices, so the Operators applied to the Tribunal for an order to terminate the existing agreement and to impose a new agreement, or in the alternative "such other order under para 34 as the Tribunal may consider appropriate in all the circumstances".

The issues

The hearing focused on two preliminary issues:

• whether the claim for the termination and replacement of the subsisting Code agreement with a new agreement would be bound to fail in circumstances where the Operators do not provide a site-specific justification
• whether the Operators' alternative claim for a different order under para 34 is bound to fail in the absence of full particulars of the alternative form of order sought, and the site-specific need for such order.

The Tribunal's decision

The key points decided by the Tribunal were:

• An operator does not have to prove a site-specific justification for the replacement of an subsisting agreement with a new Code agreement. The Tribunal applied the recent Scottish appeal decision in EE Limited & Hutchison 3G UK Limited v Duncan.   
• Whilst there is no doubt that the provisions of the Code are similar to those in the Landlord and Tenant Act 1954 (the Act), the principle established in O’May, where there is a presumption against a change of existing lease terms under the Act, was not applicable to Code agreements. Instead, the Tribunal should have regard to the terms of the existing agreement, but should take into account all the circumstances when deciding what order to make.
• An operator can apply for the termination of its existing agreement and the imposition of a new agreement on its standard terms, so long as they are annexed to the notice
• Where an operator has served a notice seeking a termination of an existing agreement, it would not then be able to seek a variation of the current agreement. A fresh notice will need to be served unless the site provider consents to the alternative approach.

Our comment

Welcome clarity has been provided that the O'May principle is not directly applicable on the renewal of subsisting agreements under the Code, although time will tell how the Tribunal will deal with the imposition of terms outside of existing agreements.

This decision also emphasises the Code's intention to confer broader rights and more flexibility on operators in view of the impending arrival of 5G networks and new technology.