LC-2023-000815 - [2024] UKUT 263 (LC)

Fecha: 01-Ene-2024

Conclusions

The outcome of the Appeal

313.

For the reasons set out in this decision, the Appeal is allowed in part. I have concluded that the Judge was wrong to decide that the 2002 Agreement took effect as a licence. For the avoidance of doubt, the Appeal is allowed, in part, on the grounds set out in paragraphs 8 and 9 of the Grounds of Appeal.

314.

For the reasons set out in this decision the Appeal is dismissed in relation to the 1997 Agreement. While I do not agree with the reasoning of the Judge in relation to the 1997 Agreement, my decision on the Term Issue results in a situation where I come to the same final conclusion as the Judge; namely that the 1997 Agreement took effect as a licence.

315.

In relation to the 2002 Agreement I will set aside the Decision, and re-make the Decision as a decision returning the following answer to the preliminary issue concerning the 2002 Agreement:

“The 2002 Agreement took effect as a lease to which Part II of the Landlord and Tenant Act 1954 applies.”

316.

In case this point matters, I should make one other thing clear, in relation to the above answer to the preliminary issue concerning the 2002 Agreement. For the reasons which I have explained earlier in this decision (neither Agreement having been made by deed), I have made a decision that the 2002 Agreement took effect as a lease. I have not made a decision on precisely what category of lease was created by the 2002 Agreement. That question will be for separate resolution, if it is in issue.

Postscript

317.

The decision which I have reached, namely to allow the Appeal in part, seems to me to be an unsatisfactory one. I have devoted a considerable part of this decision to considering the question of whether each of the Agreements granted exclusive possession of the relevant Site to Orange. For the reasons which I have set out, I have concluded that each Agreement did indeed grant such exclusive possession. One might have expected this to produce the result that both Agreements took effect as leases. The 1997 Agreement is however disqualified from this result because of the particular terms of clause 2.1 of the 1997 Agreement. This seems a very odd outcome which, for the reasons which I have also explained, I have concluded cannot be avoided by the implication of an annual periodic tenancy.

318.

The answer to what I have just said can be found in Mexfield, in the judgment of Lord Neuberger MR (as he then was), at [33]:

“Following the decision of the House of Lords in the Prudential case [1992] 2 AC 386, the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences.”

The Chamber President

Mr Justice Edwin Johnson

9^th September 2024

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.