AP Wireless II (UK) Limited v On Tower UK Limited
| Court | Upper Tribunal (Lands Chamber) |
| Judgment Date | 09 September 2024 |
| Neutral Citation | [2024] UKUT 263 (LC) |
| Date | 09 September 2024 |
| Year | 2024 |
| Counsel | David Holland Kc,Wayne Clark,Gardner Kc,Oliver Radley Gardner Kc |
Neutral Citation Number: [2024] UKUT 263 (LC)
Case Number: LC-2023-000815
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY
CHAMBER)
First-tier Tribunal Reference: LC-2023-000322 and 000348
9th September 2024
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
ELECTRONIC COMMUNICATIONS CODE – CODE AGREEMENTS –
LEASE/LICENCE DISPUTE - sites in open country – agreements entered into granting code
operator the right to install and operate telecommunications equipment – whether agreements
took effect as leases or licences – whether one of the agreements was granted for a term
which was capable of being a term certain – whether either or both of the agreements granted
exclusive possession of a defined area of land to the code operator – decision that both
agreements did grant exclusive possession of a defined area of land – decision that only one
of the agreements took effect as a lease because, in the case of the other agreement, the
agreement was not granted for a term which was capable of being a term certain and took
effect only as a licence – appeal allowed in part
BETWEEN:
AP WIRELESS II (UK) LIMITED
Appellant
-and-
ON TOWER UK LIMITED
Respondent
Land lying to the West of Burlington Gardens,
Hullbridge, Hockley, SS5 6BD and
Land at Meadowley and Fields Farm,
150A and 150B, Congleton Road, Sandbach
The President, Mr Justice Edwin Johnson
24th May 2024
David Holland KC and Wayne Clark, instructed by Freeths LLP, for the Appellant
Oliver Radley-Gardner KC, instructed by Gowling WLG (UK) LLP, for the Respondent
© CROWN COPYRIGHT 2024
The following cases are referred to in this decision:
Street v Mountford [1985] AC 809
EE Limited and Hutchison 3G UK Limited v London Borough of Islington [2019] UKUT 53
(LC)
Clear Channel UK v Manchester City Council [2005] EWCA 1304
Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513, at page 522:
Global 100 Ltd v Laleva [2021] EWCA Civ 1835 [2022] 1 WLR 1046
Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52 [2012] 1 AC 955, at [107]:
Rainy Sky SA v Kookmin Bank [2011] UKSC 50 [2011] 1 WLR 2900, at [21]:
Vodafone Ltd v Potting Shed Bar and Gardens Ltd [2023] EWCA Civ 825
Smith v Chadwick (1882) 20 ChD 2 27
Sattar v Sattar [2009] EWHC 289 (Ch)
JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419
Powell v McFarlane (1977) 38 P&CR 452
Seddon v Smith (1877) 36 LT 168
EE Ltd v Edelwind [2020] UKUT 0272 (LC)
AG Securities v Vaughan [1990] 1 AC 417
Leadenhall Residential 2 Limited v Stirling [2001] EWCA Civ 1011 [2002] 1 WLR 499
Manchester Airport Plc v Dutton [2000] QB 133
Gilpin v Legg [2017] EWHC 3220 (Ch) [2018] L&TR 6
EE Limited and Hutchison 3G Limited v London Borough of Islington [2019] UKUT 0053 (LC)
Dresden Estates Ltd v Collinson (1988) 55 P&CR 47
PG Lewins Limited v Hutchison 3G UK Limited and EE Limited (County Court at Bristol – 9th
March 2018)
Burana v Leeds Teaching Hospitals NHS Trust [2017] EWCA Civ 1980 [2018] 1 WLR 1965
Davies v Jones [2009] EWCA Civ 1164 [2010] 1 P&CR 22
On Tower UK Limited v AP Wireless II (UK) Limited (LC-2023-000322, 323, 332, 348 and 365)
Leeds City Council v Broadley [2016] EWCA Civ 1213 [2017] 1 WLR 738
Ashburn Anstalt v Arnold [1989] Ch 1
Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386
Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1
Index
Introduction Paragraphs 1-9
Preliminary matters Paragraphs 10-12
The 1997 Agreement Paragraphs 13-29
Identification of the Sandbach Site Paragraphs 30-36
The 2002 Agreement Paragraphs 37-47
Identification of the Lubbards Site Paragraphs 48-55
The Decision Paragraphs 56-64
The grounds of the Appeal Paragraphs 65-71
The respondent’s notice Paragraph 72
The lease/licence dispute – the correct
approach
Paragraphs 73-94
What is exclusive possession? Paragraphs 95-101
Analysis of the Appeal – overall
approach
Paragraphs 102-104
Analysis of the Appeal – the arguments
in paragraph 7 of the Grounds of
Appeal
Paragraphs 105-127
Analysis of the Appeal – the arguments
in paragraphs 8-10 of the Grounds of
Appeal
Paragraphs 128-263
(i) Paragraphs 8-10 of the Grounds of
Appeal - methodology
Paragraphs 128-132
(ii) Paragraphs 8-10 of the Grounds of
Appeal – Clause B and the plans
attached to the Agreements
Paragraphs 133-148
(iii) Paragraphs 8-10 of the Grounds of
Appeal – the fencing obligations
Paragraphs 149-154
(iv) Paragraphs 8-10 of the Grounds of
Appeal – rights of access
Paragraphs 155-158
(v) Paragraphs 8-10 of the Grounds of
Appeal – the absence of rights to share
use of the Sites
Paragraphs 159-161
(vi) Paragraphs 8-10 of the Grounds of
Appeal - chattels
Paragraphs 162-175
(vii) Paragraphs 8-10 of the Grounds of
Appeal – rights of relocation and
redevelopment
Paragraphs 176-191
(viii) Paragraphs 8-10 of the Grounds
of Appeal – successors in title
Paragraphs 192-231
(ix) Paragraphs 8-10 of the Grounds of
Appeal – the absence of deeds
Paragraphs 232-236
(x) Paragraphs 8-10 of the Grounds of
Appeal – the absence of reference to the
1954 Act
Paragraphs 237-240
(xi) Paragraphs 8-10 of the Grounds of
Appeal – other provisions of the
Agreements
Paragraphs 241-247
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1 cases
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AP Wireless II (UK) Ltd v on Tower (UK) Ltd
...at this level that we can do about that. I am certain that the judge was right to follow Mexfield and to reachMr Justice Edwin Johnson, President [2024] UKUT 263 (LC) ON APPEAL FROM THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER) Judge D Jackson Royal Courts of Justice Strand, London, WC2A 2LL D......
