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This case was an appeal heard by Edwin Johnson J, the President of the Upper Tribunal, from a ruling by Judge Jackson in the First-tier Tribunal. It was a telecoms case and involved the question as to whether two written agreements entered under the old telecoms code (originally by Orange) for the erection and maintenance of telecoms equipment on two greenfield sites were leases or licenses. If they are held to be leases, of course, then any renewal by the code operator had to be under the provisions of the Landlord and Tenant Act 1954, which are much more favourable to the site provider than those of the new Code. Neither agreement called itself either a “lease” or a “licence”. Judge Jackson had held that both agreements were licenses as neither granted exclusive possession. One of the agreements was for a “minimum term” of 10 years subject to termination on any date thereafter on the giving of 12 months’ notice. Judge Jackson held that this was sufficient term certain to constitute a lease (if exclusive possession had been granted).
On appeal, Edwin Johnson J, whilst approving the legal approach of the Judge to the question of whether or not exclusive possession had been granted, disagreed with him. Edwin Johnson J held that both agreements granted exclusive possession. However, he disagreed with the Judge and held that the “minimum term” provision in one of the agreements was not sufficient term certain to qualify as a lease. Thus, the appeal was allowed in respect of one of the agreements and dismissed in relation to the other (albeit on different grounds and despite the fact that it granted exclusive possession to the operator).
The case is interesting as it contains a detailed discussion of the principles and authorities on the lease/license distinction in the context of telecoms agreements as well as a consideration of the authorities on what constitutes a term that is sufficiently certain to be a lease.
David Holland KC leading Wayne Clark acted for the site provider.
