Gravesham Borough Council v On Tower UK Limited

An operator which has exhausted its right to renew a tenancy under Part 2 of the Landlord and Tenant Act 1954 cannot obtain a second opportunity to renew the same rights under Part 4 of the Electronic Communications Code. The Code assigns an operator to one renewal regime where the 1954 Act route is available. A sequential entitlement would undermine the transitional scheme and confer retrospectively the more favourable Code valuation and opposition provisions.

Where a claim form for a new tenancy has been issued but not served within the permitted period, the proceedings remain in being until judicially determined or otherwise finally disposed of. The tenancy therefore continues under section 64 of the 1954 Act. During that continuation, the operator cannot serve a valid paragraph 20 or paragraph 27 notice seeking renewal or temporary Code rights.

On Tower occupied a mast site under a tenancy protected by Part 2 of the Landlord and Tenant Act 1954. After the Council served a section 25 notice opposing renewal, On Tower issued a County Court claim for a new tenancy, but failed to serve the claim form within time. It later applied for an extension, which, together with the claim, was dismissed on 23 February 2023.

Before that dismissal, On Tower served a notice under paragraphs 20 and 27 of the Electronic Communications Code seeking permanent and temporary rights. The First-tier Tribunal refused the Council’s application to strike out the ensuing reference, holding that the two statutory regimes could be used consecutively. The Council appealed on jurisdiction, abuse of process, and validity of the notice. The central questions were whether Part 4 remained available after the failed 1954 Act claim and when the tenancy was finally determined for section 64 purposes.

1. Appeal allowed. The Upper Tribunal struck out On Tower’s notice of reference under the FTT Rules.

2. The scheme of the Electronic Communications Code, including Schedule 2 to the Digital Economy Act 2017, assigns an operator whose agreement is protected by Part 2 of the Landlord and Tenant Act 1954 to the 1954 Act route for renewal. Part 4 cannot be used after that route has been pursued unsuccessfully. A sequential scheme would irrationally give an operator access to the more favourable Code regime only after failing under the less favourable 1954 Act regime, and would defeat the policy against retrospective acquisition of the new Code’s benefits.

3. The conclusion was supported by Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] 1 WLR 3360. The transitional provisions were intended to end the duplication of security of tenure under the old Code and the 1954 Act. Paragraph 40(8) merely regulates the sequence of a removal application and an existing paragraph 20 application; it does not itself confer jurisdiction to make a paragraph 20 application.

4. Under section 64 of the 1954 Act, proceedings are not finally disposed of merely because the time for service of an issued claim form expires. The claim may still be the subject of an application under CPR rules 7.6 or other judicial orders. The word determined implies a judicial decision and finality, rather than administrative termination or procedural abeyance. The tenancy therefore continued when On Tower served its paragraph 20/27 notice.

5. Paragraph 27 requires, among other things, that the site provider have the right to require removal of the apparatus. That condition was not met while the 1954 Act tenancy continued. Paragraph 20 was likewise unavailable because On Tower sought renewal of existing rights rather than additional rights. The reference was consequently commenced without a valid paragraph 20 request and was independently liable to be struck out.

6. The Tribunal did not need to decide abuse of process. If the Code had permitted the second claim, the procedural dismissal of the first claim, without misconduct or merits determination, would not alone have made the second claim abusive.

• Upper Tribunal (Lands Chamber): Gravesham Borough Council v On Tower UK Limited [2024] UKUT 151 (LC) allowed the Council’s appeal and struck out On Tower’s notice of reference.
• First-tier Tribunal (Property Chamber): refused the Council’s strike-out application and held that an operator could use the 1954 Act and Part 4 of the Code consecutively.