This decision provides a valuable insight into the renewal of telecoms leases under the Landlord and Tenant Act 1954 (the Act) in the context of heightened building safety regulation. It underscores the need for balanced, evidence-based lease terms that reflect both the operator’s business needs in a complex and rapidly changing sector against the landlord’s statutory obligations. Much emphasis was placed upon the useful and informative decisions from the Lands Tribunal and the relevance of the decisions of that specialised chamber to the issues in front of the County Court.
In a decision of the County Court for the renewal of a business tenancy on a rooftop site under the Act, the case is interesting not only in respect of the interaction between the 1954 Act, the Electronic Communications Code (Code), but also in its consideration of health and safety regulations, particularly the Building Safety Act 2022 (BSA 2022).
Vodafone had occupied a rooftop site on a tall residential building owned by the council under a 1954 Act protected tenancy since 1993. Its current lease expired in 2018 and Vodafone applied for a new lease in March 2023 under the 1954 Act. Whilst the rent and term of the renewal lease were agreed, several lease terms remained in dispute, requiring the court’s determination under section 35 of the 1954 Act.
Under section 35 of the 1954 Act the court must have regard to "the terms of the current tenancy and to all relevant circumstances." Here, the court also reaffirmed the principles from O’May v City of London Real Property Ltd [1983] 2 AC 726, emphasising that the starting point is the existing lease, but changes are permitted in accordance with the demands of fairness and justice, having regard to the essential fairness of the proposed lease terms in light of all relevant circumstances.
RAMS approval, approvals of drawings and specifications and general design and conduct of works
A central theme was the impact of health and safety regulation and the fact that the building was a "higher-risk building" for the purposes of the BSA 2022, which imposes increased duties on landlords in respect of building safety.
The council argued for greater control over Vodafone’s works to ensure it could comply with its statutory duties, seeking a blanket approval right over Risk Assessment and Method Statements (RAMS) and drawings and specifications for the Tenant's works, beyond what was included in the existing lease. The court agreed that the agreed terms of the renewal lease (as proposed) contained robust provisions which regulated the tenant's works and provided sufficient protection for the landlord subject to the provision of RAMS.
Right to upgrade, access protocols and exclusion zones
Vodafone was granted broad rights to upgrade its Electronics Communication Apparatus and it was made clear that paragraph 17 of the Code should not apply, reflecting the need for flexibility in a rapidly evolving sector. The council’s attempt to impose more stringent restrictions than those contained in the existing lease was rejected, with the court favouring a balance that protects both operational needs and resident safety.
The council also sought to impose more onerous conditions on the tenant's rights of access however the court favoured the less restrictive provisions put forward by the tenant, although it did accept the council's proposition that some charges strictly limited to access for major works might be just and reasonable. This was offset against the rent awarded.
The tenant must keep the council informed of both occupational and public exclusion zones (on the basis that the existing lease did not distinguish the two) but the council will not be permitted to withhold consent over their location.
Indemnity and dispute resolution
The court declined to accept the council's request for a more comprehensive indemnity provision, making only a minor amendment to clarify an ambiguity in the existing lease. Whilst each party made its own proposals with regards dispute resolution provisions, the court, referring to the O'May principles declined to depart from the existing lease which did not include a clause for dispute resolution.
Fire risk
The court accepted that the council had a laudable concern for mitigating the risk of fire but without more evidence of what is the norm around the use of fire resistant cables and service media concluded it would be unfair to impose the council's more onerous terms around fire safety.
Lift and shift
The principle of lift and shift was agreed between the parties but they were in disagreement over the notice periods for the exercise of the rights and which party should bear the costs of relocation. The court agreed with Vodafone that longer periods of notice would be fair given the complexity of telecoms equipment and the need for careful planning.
