In a recent case, the Upper Tribunal considered whether telecoms operators can seek an order imposing a tenancy of a mast site under the Electronic Communication Code, following an unsuccessful application under the Landlord and Tenant Act 1954.
In Gravesham Borough Council v On Tower UK Ltd [2024] UKUT 151 (LC) a landlord served notice on the telecommunications operator, to terminate its tenancy of a roof top mast site and oppose renewal. Whilst the operator's solicitors did file a claim for a new tenancy, due to an error, service of the claim form did not take place until after the statutory deadline to do so had passed. An application to extend the deadline was unsuccessful, the operator lost its security of tenure and the claim for a new tenancy was dismissed by the Court.
In the meantime, the operator also gave notice to the site owner requiring it to enter into a new agreement under the Electronic Communications Code. In response, the site owner gave notice requiring the operator to remove its apparatus from the roof. The operator referred its request for Code rights to the Tribunal.
An appeal to the Upper Tribunal ("UT") considered whether the operator could validly seek an order under the Code. In 2022 the Supreme Court had already held that the tribunal has no jurisdiction to impose a Code agreement when an operator is already in occupation of a site under a 1954 Act protected tenancy - an operator who has a lease which predates the Code has to renew its existing lease and not rely on the Code.
The question was therefore whether this previous decision could be distinguished. Whilst an operator does not have dual rights the Court was required to decide whether, in circumstances where the right to renewal under the 1954 Act had been exhausted, an operator would then be entitled to pursue a claim for new rights under the Code? In other words, can an operator use the two regimes consecutively or, having failed under the 1954 Act, was the operator not entitled to 'try again' under the Code?
The UT held that the operator was prevented from making a further application under the Code, as that would contradict intended policy. It would be "astonishing" if operators could choose to renew under the Code instead of the 1954 Act, particularly given that the Code is much more favourable to operators than the 1954 Act (allowing a much shorter notice period, a considerably more occupier-friendly basis of assessing rent, and far more limited grounds of opposition to the imposition of an agreement).
The UT further noted it would result in an "absurd state of affairs" if an operator was obliged to seek renewal under the 1954 Act, knowing that if they failed, they would then "gain access to the more desirable reward of a renewal under Part 4 of the Code". It was observed that this could even lead to operators managing 1954 applications incompetently, to deliberately cause a renewal to fail in order to access more advantageous Code rights.
An operator which had exhausted renewal rights under the 1954 Act was therefore barred from making an application to the Tribunal for rights over the same site under the Code.
The UT also held that as the operator's application for Code rights had been made whilst the tenancy was still continuing under the 1954 Act, and before the application for an extension of time was dismissed, the notice it had given pursuant to the Code was premature (and therefore invalid) in any event.
While this case is quite fact-specific, the UT's decision confirms that Operators that have lost 1954 Act rights will not be able to obtain rights under the Code instead. The case confirms there is no dual regime available in relation to agreements which pre-date the Code. Operators will not have a second bite of the cherry!
