The First-tier Tribunal has issued a decision of some interest concerning the Electronic Communications Code, and the ability of an operator to use Part 4 of the Code in circumstances where protection under the Landlord and Tenant Act 1954 was lost by oversight.
Followers of the Code will recall the decision of the Supreme Court in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and conjoined appeals [2022] UKSC 18; [2022] PLSCS 99 touched on the interplay between protected business Act tenancies and new applications for rights under the Code. In the conjoined case of Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2021] EWCA Civ 90; [2021] EGLR 14, the court accepted what had consistently been held below: where an operator had a lease protected by the 1954 Act, it had to pursue the renewal process under that Act rather than seeking modification under the Code. It was not, however, prevented from seeking entirely new code rights.
The FTT has jurisdiction to hear cases concerning the Code pursuant to the Electronic Communication Code (Jurisdiction) Regulations 2017, although matters cannot be begun in the FTT. Matters can be transferred under rule 5(k) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. The Upper Tribunal (Lands Chamber) is looking to transfer a larger number of more “routine” matters to the FTT following the enactment of the Code nearly six years ago.
The latest case
On Tower Ltd v Gravesham Borough Council (unreported, 2 October 2023) concerned a case where the operator had security of tenure but lost it, presumably by failing to issue proceedings before the expiry of the statutory period stipulated by the landowner’s section 25 notice under the 1954 Act (and hopefully not by failing to issue proceedings after service of its own section 26 notice).
As such, the FTT apparently had to determine whether the operator was able to seek new rights using Part 4 of the Code, specifically, paragraphs 20 and 27 (paragraph 27 applies where equipment is already installed on, over or under land but where there are no rights to keep the apparatus so installed). The FTT held that, notwithstanding the failure to exercise the right to claim a new protected tenancy by the operator, there was nonetheless jurisdiction for a grant of new rights, whether these were lesser than or greater than the “lost” rights. In so holding, it pointed to the contents of paragraph 40(8) of the Code, which states:
“On an application… the court may not make an order in relation to apparatus if an application under paragraph 20(3) has been made in relation to the apparatus and has not been determined.”
Paragraph 40(8) offered what has been described as a “last-chance saloon”. That is, a route through the Code to new rights, even where all rights have been lost, where:
- a notice under paragraph 40(2) requiring removal has been served by the site provider;
- the parties have failed to reach an agreement pursuant to paragraph 40(5) within the specified time frame, which is 28 days, and;
- the site provider has applied to the tribunal for an order requiring the operator to remove the apparatus or to allow the site provider to sell the apparatus.
It is notable that the last-chance route contained in paragraph 40(8) provides an escape for the operator even where it is ordered to remove the apparatus, fails to do so, and the site provider subsequently makes a further application for rights pursuant to paragraph 44(3), eg for rights to sell the apparatus.
Policing the system
The FTT indicated that it and the UT would however “police” applications to ensure the system is not being inappropriately “gamed”. One would assume part of this policing will be to treat applications under paragraphs 26(5) and 27(5) to abridge the time between notice and any application for new rights with greater caution. Equally, they might also look out for operators deliberately pushing the timetable out as far as possible to protect coverage.
The FTT also seems to have made remarks that it may be preferable for notices from operators seeking new rights to be timed to land in response to, rather than in anticipation of, notices from site providers under paragraph 40. In many circumstances, however, both site providers and operators may prefer to reverse the position. An operator might want to make it clear exactly what rights it is seeking at an earlier stage, by serving notice and attaching its proposed agreement.
This might help to fill a gap in communication where the site provider assumes the operator will only accept identical terms which are impossible taking into account development or redevelopment, in circumstances where the operator is happy to flex what is sought to work around the landowner’s plans, so long as the site is retained in the long term.
Equally, site providers trying hard to get a development up and running will be frustrated by operators waiting until the last possible second to make their intentions clear. As such, these remarks may constitute something of a surprise. However, all parties will need to wait until the judgment is reported to see exactly what point it was that the FTT was looking to make.
Laura West is a barrister
