Court Of Appeal Clears The Way For Developers: Update On Code Rights And Concurrent Leases

• Published date: 25 July 2023
• Law Firm: Herbert Smith Freehills
• Author: Mr Matthew Bonye, Frances Edwards and Shanna Davison

In August 2022, the Upper Chamber of the Lands Tribunal identified a major structural defect in the Electronic Communications Code which sterilised land from development if there was an intermediate lease structure in place. The case was Vodafone Limited v Gencomp (No.7) Limited and A P Wireless II (UK) Limited (LC-2021-613) and you can read our blog post here for further details.

Interestingly, the Gencomp case wasn't in fact about development. Vodafone wanted to renew its Code agreement (granted in the form of a lease) and whilst the original site provider and the intermediate landlord were happy to do so, no-one could work out who should be the correct party to terminate the existing Code agreement and grant the new one.

The issue turned on paragraph 10 of the Code, which sets out who is bound by a Code right. It includes:

• an occupier with an interest in land who conferred the Code right (we'll call them "O")
• a successor in title to O (ie a purchaser of O's property interest) ("P"); and
• any subleases created out of O's...