The court has settled the terms of an unopposed lease renewal of a telecommunications mast site at a farm near Leeds under the Landlord and Tenant Act 1954 in On Tower UK Ltd v AP Wireless (II) UK Ltd Case No: H00BM926, a case which highlights distinctions between renewals under the 1954 Act and those under the Electronic Communications Code (Schedule 3 to the Communications Act 2003).
The mast site comprised a small, fenced compound close to the M1 motorway. Access to the site was gained from the public highway by a shared track which passed through an electronically controlled gate into the farm. Most of the apparatus on site belonged to other operators, which placed their apparatus on the claimant’s infrastructure.
Section 35 of the 1954 Act requires the court to have regard to the terms of the current tenancy and all relevant circumstances when settling renewal terms. Any party seeking a change must justify it: O’May v City of London Real Property Co Ltd [1983] AC 726. The parties had agreed a 15-year term but disagreed over various terms including the rent payable. The case was one of 134 sites concerning lease renewals between the parties. This decision and that in On Tower UK Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152 (LC); [2022] PLSCS 133 (Audley House), which concerned three industrial sites governed by the Code, would resolve matters of principle and enable other renewals to be completed by negotiation.
The existing lease gave the claimant unrestricted rights of access. APW’s requirement for notice in writing of the need for access and a description of the work to be undertaken was rejected by the court as there was no evidence that the current arrangements had caused difficulties for the claimant in obtaining access to the site. The court also sought to promote standardisation: the Upper Tribunal had refused such a provision in Audley House.
APW’s requirement for the claimant to provide risk assessments and method statements before accessing the site was also refused. No sufficient reason for introducing the obligations had been provided, and APW was not responsible for health and safety on the site. APW also failed to justify inclusion of a Jervis v Harris clause enabling it to require the tenant to carry out repairs and in default to enter, carry out the works and recoup the costs from the tenant, as there was no history of disrepair at the site.
The rent payable under section 34 of the 1954 Act is the rent the site would reasonably be expected to be let for in the open market by a willing lessor disregarding any effect of the tenant’s occupation and goodwill attached to the holding. Under paragraph 24 of the Code, the rent is determined on favourable valuation assumptions for the benefit of operators including the “no-network” assumption, which has led to the structured approach to valuation considered in Vodafone Ltd v Hanover Capital Ltd [2020] EW Misc 18 (CC); [2020] EGLR 35. A landlord would expect a better rent under the 1954 Act than under the Code. The court set a figure of £3,200 per annum inclusive of fees.
Louise Clark is a property law consultant and mediator
