Rights of renewal are available to an operator either under the Electronic Communications Code or under the Landlord and Tenant Act 1954 but not under both.
The Upper Tribunal (Lands Chamber) has considered this issue allowing an appeal from the First-tier Tribunal in Gravesham Borough Council v On Tower UK Ltd [2024] UKUT 151 (LC).
The case concerned the occupancy of a rooftop site at the Hive, an eight-storey residential building in Northfleet, owned by Gravesham. Electronic communications apparatus occupied the site since 1997 under a 20-year lease, now vested in On Tower, which was protected under the 1954 Act. Gravesham needed to carry out repairs to a leaking roof and could not do so without removal of On Tower’s apparatus.
Gravesham served notice to terminate the lease under the 1954 Act. On Tower’s application for a new tenancy was issued by the county court but due to problems at its solicitors’ office it was not served within the four-month period required under CPR 7.5.
On Tower’s application to extend time for service was refused and its claim dismissed on 23 February 2023. On 17 February 2023, On Tower served a paragraph 20 notice requiring a new agreement under Part 4 of the Code and then made application to the Upper Tribunal. Gravesham applied to strike out the reference.
The FTT agreed with Gravesham’s submission that there was no dual protection under the 1954 Act and the Code but, while the regimes are not concurrent, they are sequential Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18. On Tower having failed to obtain a new tenancy under the 1954 Act could claim new rights under Part 4 of the code in response to an application to enforce removal of its apparatus under Part 6, subject to preventing relitigating issues already determined, such as redevelopment.
The Tribunal disagreed, striking out On Tower’s reference. The Code allows an operator one route to renewal of their rights: the 1954 Act or the Code but not both. On Tower’s suggested operation of the Code would result in an absurd state of affairs where an operator obliged to seek renewal under the less favourable 1954 Act regime would know that if they failed, they could access the more favourable Code regime. This was neither rational nor what parliament intended. On Tower was also barred from serving a section 20 notice while its tenancy was continuing under the 1954 Act.
Louise Clark is a property law consultant and mediator
