An agreement under Part 4 of the Electronic Communications Code 2017 could not be imposed in favour of an operator who was holding over under section 24(1) of the Landlord and Tenant Act 1954 when the Code came into force.
An agreement under Part 4 of the Electronic Communications Code 2017 could not be imposed in favour of an operator who was holding over under section 24(1) of the Landlord and Tenant Act 1954 when the Code came into force.
The claimant (C) is a joint venture company formed by Vodafone and Telefonica. It was the current tenant of a lease of a roof-top site housing telecommunications apparatus whose contractual term had expired in 2012. Following an assignment in 2019, C was now holding over under Part II of the Landlord and Tenant Act 1954 (the 1954 Act).
Although Part 5 of the Electronic Communications Code 2017 (the Code) deals with the termination and renewal of agreements, C could not use Part 5 to terminate its existing lease and request a new lease because its existing lease was not contracted out of the 1954 Act’s security of tenure regime (the transitional provisions of the Code do not apply to agreements subsisting when the Code came into force on 28 December 2017 if the agreement is a lease to which the 1954 Act applies and the agreement is not excluded from the Act’s security of tenure regime).
Instead of applying to the court for the grant of a new lease under the 1954 Act, C gave notice to its landlord (L) under Part 4 of the Code (paragraph 20) seeking the grant to it of new code rights (Part 4 is the section of the Code dealing with agreements to confer new code rights imposed by a court). When no agreement was reached, C applied to the Upper Tribunal (Lands Chamber) (UT) to impose an agreement under Part 4 of the Code.
L claimed that the UT had no jurisdiction to impose new code rights under Part 4 in C’s favour.
Could C use Part 4 of the Code to claim new code rights from L?
In the case of Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755, the Court of Appeal held that a Part 4 agreement could only be imposed in favour of an operator on a person who was occupying the land. Part 4 was not therefore available to C as C was already the occupier of the site and Part 4 could not be used to impose code rights; or an existing operator already in situ.
To obtain a new lease, C had to apply to the County Court using the procedure in the 1954 Act.
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