KB-2023-002277 - [2025] EWHC 1880 (KB)

Given my decision in relation to the application to strike out, the alternative application for summary judgment does not strictly arise. It was, however, argued, and, in case I am wrong as to the strike out application, and as I have formed a clear view in relation to it, I will express my conclusions in relation to it.

Mr Birdling for the SoS made it clear in his submissions that he was contending that there was no realistic prospect of a court granting the declaration sought in paragraph (1) of the Prayer for Relief not only on the basis that the claim was abusive (i.e. the point already considered in the context of the strike out application), but on the basis that there was no realistic prospect of a court holding that the application which SEP had made was invalid. This, Mr Birdling said, involved a short point of law.

Mr Elvin KC, for Bodorgan, agreed that the point was a short point of law, and that the relevant evidence was before the court. Mr Greenhill KC for SEP sought, perhaps unsurprisingly, to adopt a more cautious position. He contended, as I understood it, that the point could be decided against Bodorgan on a summary basis, and put forward arguments as to why it was clear that the application which SEP had made was valid; but suggested also that there might be other material which SEP would wish to adduce if there were a prospect of the point being summarily decided in Bodorgan’s favour.

The principles on which a court will grant summary judgment are of course well-known. They were summarised in Easyair Ltd (trading as Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15].

In the present case, the issue is whether there was an ‘application’ made by SEP within the three month period after service of the notice to remove. As I have set out above, SEP had lodged through the portal most of the documents relevant to such an application in November 2016. Within the three month period after the notice to remove was served, it lodged that document, which was intended to go with, and which appears on the portal with, the other documents lodged earlier.

In my view, there is no realistic prospect of a court finding that that was not an application made within the three month period after the notice to remove. The further document was clearly intended to complete the documentation necessary for the application. The correct analysis is, I consider, that SEP, at the point of lodging the notice to remove, made its application on the basis of the, now complete, documentation. It is unduly technical and unreal to say that the lodging of the earlier documents constituted the only application, which was premature and invalid, and that the later document was simply added to that invalid application and had no effect.

Neither the 1989 Act nor any statutory regulations made under it contain any provisions as to what an ‘application’ must consist of, or as to what form it should take. There is no provision that all relevant information must be provided at the same time. Insofar as it is relevant to the question of construction at issue here, the SoS’s January 2014 Guidance for Applicants and Landowners and/or Occupiers states that for all necessary wayleaves applications in relation to existing electric lines a copy of the notice to remove should be included amongst the information supplied (para 2.20); but there is no explicit statement in the Guidance that all the information has to be uploaded once that document is available. There is, in summary, nothing in the Act or the Guidance which specifies that documents cannot be submitted in advance of when an application can validly be made, and added to when it can.

Consistently with this, the official within the SoS’s department who was spoken to on 12 May 2017 accepted that, as the existing material had not been processed, the notice to remove could be added to the material already on the portal, and it was plainly implicit that all that material would be considered together. There is little sense in regarding that universe of material, which necessarily included a document postdating service of the notice to remove, as an application made before the service of the notice to remove, even though the notice to remove now formed part of that universe, and even though treating the whole as an application made before the service of the notice to remove would mean that the application was invalid and of no effect.

It is difficult to see any adverse implications of recognising that a valid application was made in this case. All the information which it is indicated in the SoS’s Guidance should be provided was lodged so as to be on the SoS’s portal within the period of three months of the notice to remove. The statutory purpose of requiring the application within three months of the notice to remove, which is clearly to ensure expedition and limit the length of any period of uncertainty as to what will be the rights of the parties going forward, was fulfilled. The landowner suffered no prejudice by reason of some of the documentation having been submitted early.

Mr Elvin KC referred to the fact that paragraph 8 of Schedule 4 was, as he put it, of a ‘mandatory / expropriatory nature’ in that, subject to the wayleave procedure, the landowner may have no choice in the matter. This, he argued, meant that ‘licence holders should not be permitted to adopt lax practices’ when exercising rights to seek a necessary wayleave. I do not consider that the fact pattern involved here can properly be described as a ‘lax practice’. Nor do the potentially adverse consequences for the landowner of an application under paragraph 8 suggest that a licence holder should be penalised for submitting documents early, even if all required documents have been uploaded before the end of the three month period.

Mr Elvin KC relied on an analogy with Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850. That case involved a provision of the Landlord and Tenant Act 1954 which provided that ‘no application’ under s. 24 of the Act for a new tenancy ‘shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord’s notice under section 25 of this Act, or as the case may be, after the making of the tenant’s request for a new tenancy’ It was held that an application made less than two months after the request for a new tenancy could not be entertained by the court. That case, however, involved both different statutory language and context and different facts. The 1989 Act does use the phrase ‘the [SoS] shall not entertain an application…’, for example in paragraph 6(4) of Schedule 4, but not in paragraph 8. The nature of the ‘application’ was not the same, as in Kammins what was involved was an application to the court by way of originating summons, whereas here what is involved is an application to the SoS by the uploading of documents onto the SoS’s portal. Furthermore, in Kammins there was not, as there is here, any question of the supplementing, within the specified time, of documentation submitted before time; and there was no suggestion there that an application had actually been made within the period of no less than two and no more than four months of the request for a new tenancy. For those reasons I do not consider that Kammins is helpful as an analogy.

For those reasons I would, had it arisen, have granted summary judgment in favour of SoS.