[2024] UKUT 51 (LC)

On 3 October 2022 the respondent served two notices upon the claimant. One was a notice bringing the Site Lease to an end on 8 November 2023, said to be given in accordance with clause 5.8(b)(v) of the lease. The other was a notice under paragraph 31 of the Code, stated to be given without prejudice to the respondent’s contention that the Site Lease does not grant Code rights and is not a Code agreement. The paragraph 31 notice proposed that the Site Lease come to an end on 8 April 2024.

Put another way, the respondent claims to have brought the Site Lease to an end in accordance with the terms of clause 5.8. It says that the Site Lease is not a Code agreement so that the Code cannot prevent the notice given under clause 5.8 from having effect; but in case it is wrong about that it has also given notice intending to bring the lease to an end in accordance with the provisions of the Code.

The claimant gave a counter-notice to the paragraph 31 notice and has brought this reference. It says that the Site Lease is a Code agreement, so that the lease can only be brought to an end in accordance with the provisions of paragraphs 31 and following. The claimant says that the paragraph 31 notice given by the respondent is not valid; but in case it is, the claimant has brought this reference and applies under paragraph 34 for an order either that the Site Lease continue or that it be granted a new Code lease on terms that it has set out.

Under the current legal provisions the reference had to be commenced in the Upper Tribunal. It is the Tribunal’s practice to transfer most Code references to the First-tier Tribunal unless they raise issues of principle, and it did so in this case because it was not apparent from the claimant’s statement of case that the reference was going to give rise to any novel issues. However, it was transferred back to the Tribunal by directions given by the FTT for the hearing of the following preliminary issues:

Only if the Site Lease is a Code agreement and the paragraph 31 notice was valid does the Tribunal then have jurisdiction to decide whether the Site Lease should be brought to an end.