English County Court clarifies Building Safety Act obligations in telecoms lease renewals

In a recent decision concerning a lease renewal under the Landlord and Tenant Act 1954 (1954 Act) of a telecoms site, the County Court examined how the implications of the Building Safety Act 2022 (BSA) affects site provider and operator rights and obligations under a lease.

The (unreported) case of Vodafone Limited v Gravesham Borough Council examined, among other disputed lease terms, the extent to which the introduction of the Building Safety Act meant that the site provider had to scrutinise and approve Vodafone's equipment and works on site and how the legislation should be reflected in the lease renewal terms.

Background

Vodafone occupies a rooftop site on Gravesham Court, a residential block owned by Gravesham Borough Council, for over 30 years under a 1954 Act protected lease.

While any new lease entered into between the parties would be an agreement pursuant to the Electronic Communications Code, the renewal proceeded under the 1954 Act. This gives the court the power to determine disputed terms of the renewal lease under section 35 where parties cannot agree those terms between themselves. In determining those terms the court must have regard to the existing lease and all other relevant circumstances. 

With rent having already been agreed between the parties, the main outstanding terms related to:

• The approval of risk assessment method statements (RAMS), drawing and specifications.
• Access protocols.
• The right to upgrade.
• Design and conduct of works.
• ICNIRP exclusion zones (safety areas around radio frequency transmitting antennas).
• Lift and shift provisions (clauses which allow a site provider to require relocation of  electronic communications apparatus).

Consideration of existing case law against new building safety legislation

The court considered precedent case law (Upper Tribunal and First Tier Tribunal) under the Code. However, given the difference in jurisdiction, it decided that it would not be a failure under section 35 of the 1954 Act not to address non-binding precedent but that the court's failure to address the facts identified as relevant in this case with references to that non-binding precedent would be a failure.

The court considered the BSA's impact, noting Gravesham Court is a "Higher Risk Building" with the council as Accountable Person and Principle Accountable Person. The parties agreed that health and safety duties were relevant circumstances for lease renewal terms.

Vodafone's position was that the health and safety duties did not impose strict liability on site providers and that the fact that an operator will have knowledge and control over its own equipment must be taken into account.

The court considered previous decisions of the Upper Tribunal on statutory liability but acknowledged that the BSA had come into force since those decisions.

Approval of RAMS, drawings and specifications

Both parties had made significant concessions to the lease drafting prior to trial, with Vodafone giving the council the comfort of having oversight of proposed "Tenant's Major Works" being carried out on the site. 

On that basis, and on the basis of other tenant obligations in the lease, such as compliance with laws, the court felt that Vodafone had given the council sufficient assurances and therefore there was no reason under the BSA or otherwise for the site provider to approve RAMS, drawings and specifications in every circumstance. 

Access protocols

The court rejected the council's proposed detailed access protocols as they significantly changed the existing lease and in light of all the other health and safety related undertakings that Vodafone had already proposed. 

As a compromise, Vodafone had proposed its own short access protocol setting out the practical guidelines for obtaining access and this was approved by the court with the inclusion of the council's proposed fee schedule for access for tenant's major works only.

Right to upgrade

The court agreed with Vodafone that unlimited upgrading rights were fair and should not be limited to paragraph 17 of the Electronic Communications Code, thus following previous tribunal rulings on the point.

Design and conduct of works

Both parties had proposed wording relating to the design and conduct of work on site. Given the decision already made in respect of RAMS, drawings and specifications and the assurances already proposed by Vodafone, the council was given the limited right to make comments or enquiries on the design and conduct of any works on site. 

However, such comments or enquiries would not confer a right to control Vodafone's or its contractors’ designs or safe working practices.

ICNIRP exclusion zones

The existing lease contained an undertaking on Vodafone to demarcate exclusion zones generally, without distinguishing between "occupational" and "public" exclusion zones. On that basis, the undertaking in the renewal lease in relation to exclusion zones should cover both "occupational" and "public" exclusion zones to reflect the existing position. 

However, the judge rejected the council's proposed inclusion of  both the right to withhold consent as to the location of exclusion zones and additional undertakings from Vodafone that went beyond the existing lease obligations as Vodafone had already agreed to comply with all laws and necessary consents. 

Lift and shift provisions

The parties were in disagreement in respect of the period of notice that should be given in the event of a lift and shift being required and who should bear the costs of the works. 

The court accepted Vodafone's proposal in respect of the time periods needed in respect of any notice but accepted the council's position that any lift and shift works should be carried out at Vodafone's expense.

Osborne Clarke comment 

The BSA is a hot topic across the property industry more widely and telecoms is no different. This case provides clarity on the extent to which a building owner needs to take responsibility for (and its level of involvement in) its tenants' use of a premises. 

In this case, Vodafone recognised the council's concerns and proposed fair and reasonable wording which allayed those concerns while allowing it to conduct its own business as an experienced and responsible telecoms operator. The court clearly recognised the compromises the council had been offered and accepted Vodafone's proposals while limiting the ability of the council to restrict the day to day running of Vodafone's site.

This decision gives clarity in this emerging landscape and will provide guidance to both operators and site providers to allow renewals and acquisitions to continue to be rolled out quickly. 

Osborne Clarke acted for Vodafone in this matter.