An operator that has lost its rights under the Landlord and Tenant Act 1954 is able to claim new code rights under the Electronic Communications Code contained in schedule 3A of the Communications Act 2003.
The First-tier Tribunal considered this issue in On Tower UK Ltd v Gravesham Borough Council LC-2023-000391, dismissing a strike-out application by the respondent landlord.
The case concerned the occupancy of a rooftop site at the Hive, an eight-storey residential building owned by Gravesham Borough Council. Electronic communications apparatus had 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. 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. Shortly before the claim was dismissed following the court’s refusal to extend time for service, On Tower served a paragraph 20 notice requiring Gravesham to confer on it a code right. Gravesham applied to strike out On Tower’s reference to the Upper Tribunal. The FTT considered the application.
The FTT agreed with Gravesham’s submission that there was no dual protection under the 1954 Act and the Code. An operator with 1954 Act protection cannot rely on either Part 4 or Part 5 of the Code. However, while the regimes are not concurrent, they are sequential: see Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18; [2022] EGLR 28.
An operator must use its 1954 Act rights to renew its tenancy, which will then be caught by section 43(4) of the 1954 Act so that when that lease expires Part 5 of the Code will be available. Where a 1954 Act renewal fails, the site owner can only enforce its right for removal of the operator’s apparatus under Part 6 of the Code (unlike a “vanilla” 1954 Act lease which terminates three months after final disposal of the application by the court).
Parliament intended that an operator can challenge the removal of functioning apparatus under Part 6 by applying under Part 4 subject to considerations of abuse of process and preventing re-litigating issues already determined, such as redevelopment. 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.
Louise Clark is a property law consultant and mediator
