Telecommunications – Electronic communications code – Jurisdiction – First-tier Tribunal dismissing site owner’s application to strike out reference for new code agreement – Whether operator entitled to apply for new agreement after losing right of renewal under Landlord and Tenant Act 1954 through delay in serving claim form – Whether unserved claim “finally determined” under section 64 of 1954 Act – Appeal allowed
The appellant local authority granted a lease of a mast site on the roof of The Hive, a block of flats in Northfleet, to the respondent’s predecessor for a term of 20 years. The term expired in March 2017 but the tenancy was continued by Part 2 of the Landlord and Tenant Act 1954.
In 2019, the tenancy was assigned to the respondent which continued to occupy the site for the purpose of its business of providing a telecommunications infrastructure system.
The appellant wished to undertake repairs to the roof but no agreement was reached with the respondent or its predecessor to enable those works to be carried out. Therefore, the appellant gave notice to the respondent under section 25 of the 1954 Act, terminating its tenancy and stating that a renewal application would be opposed.
The respondent applied for a new tenancy under section 24(1) of the 1954 Act but the claim form was not served until after the four-month period allowed for service had expired. The respondent’s application to extend the service period was dismissed.
Shortly before the hearing of its application to extend time, the respondent gave notice to the appellant under paragraph 20 of the Electronic Communications Code requiring it to enter into a new agreement under Part 4 of the Code. The appellant responded by requiring the respondent to remove its apparatus from the roof.
The respondent referred its paragraph 20 request to the First-tier Tribunal which dismissed the appellant’s application to strike out the reference. The appellant appealed.
Held: The appeal was allowed.
(1) In Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18; [2022] EGLR 28, the Supreme Court decided that (with very limited exceptions) it would be inconsistent with the way the Code was intended to work for an operator who had a lease which predated the Code to be given a choice whether to seek a new agreement under Part 4 of the Code or to renew its lease under the 1954 Act. If an operator wanted a new lease conferring the same code rights, it had to renew its existing lease under the 1954 Act and could not rely on the Code.
The further question in this case was whether an operator which had tried to obtain a new lease under the 1954 Act, but failed, might then seek renewal of its rights by applying to the tribunal under the Code.
(2) The Code allowed each operator one route to the renewal of their rights. The policy choice to require those with security of tenure under the 1954 Act to seek renewal under its provisions necessarily entailed the possibility that any particular renewal might not succeed.
The proper interpretation of the Code required that an operator which had exhausted its rights of renewal under the 1954 Act was prevented from making a further application for rights under Part 4 of the Code. The FTT did not have jurisdiction to entertain the respondent’s reference under Part 4 and should have struck it out under rule 9(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
(3) The notice given by the respondent invited the appellant to enter into two different agreements, the first conferring temporary rights under paragraph 27 of the Code and the second for unrestricted rights under paragraph 20. Paragraph 27 was intended to provide an operator with a means of keeping electronic communications apparatus which was already on a site functioning while it sought new permanent rights.
Paragraph 27 only applied where each of three conditions in paragraph 27(1) was satisfied: (i) the operator had given notice under paragraph 20(2) inviting the recipient to enter into an agreement conferring code rights; (ii) the notice had invited the recipient to enter into an agreement on a temporary basis in relation to apparatus already on the land; and (iii) the recipient had the right to require the removal of the apparatus under paragraph 37 or paragraph 40(1), but the operator had not yet been required to remove it. It followed that a claim for temporary code rights was only available after an existing agreement had come to an end.
(4) Section 64(1) of the 1954 Act provided that, where an application had been made for a new tenancy under Part 2 and the effect of a notice to terminate the tenancy was to terminate it earlier than the expiry of three months “beginning with the date on which the application is finally disposed of”, the effect of the notice was to terminate the tenancy at the expiry of that period and not at any other time.
Section 64(2) identified the date on which “the proceedings on the application (including any proceedings on or in consequence of an appeal) have been determined and any time for appealing or further appealing has expired” as the date on which the application was finally disposed of for the purpose of starting time running under section 64(1).
In the context of section 64, the word “determined” implied more than an administrative termination; it suggested a judicial decision that finality had been achieved and was used to identify the point in time when proceedings had been “finally disposed of”. It was not apt to refer to proceedings as having been determined when they were in abeyance for some procedural reason but might nevertheless be revived.
(5) The respondent’s proceedings under the 1954 Act were not “determined” when the time for service of the claim form expired and the respondent was not entitled to serve a notice under paragraph 27 to secure temporary rights because its tenancy was still continuing. The respondent was also barred from serving a valid notice under paragraph 20 while its tenancy was being continued by the 1954 Act. On that basis, its Part 4 claim was commenced without a valid request under paragraph 20 having first been made and without the required time for consideration of the request by the appellant having elapsed. That was a further, free standing, ground for dismissing the reference under the FTT Rules: Shotley Point Marina (1986) Ltd v Spalding [1997] 1 EGLR 233 considered.
Jonathan Wills (instructed by Freeths LLP) appeared for the appellant; Oliver Radley-Gardner KC (instructed by Gowling WLG (UK) LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Gravesend Borough Council v On Tower UK Ltd
