[2024] UKUT 151 (LC)

The notice given by On Tower on 17 February 2023 invited the Council to enter into two different agreements, the first conferring temporary rights under paragraph 27 of the Code and the second for unrestricted rights under paragraph 20. Paragraph 27 is intended to provide an operator with a means of keeping electronic communications apparatus which is already on a site functioning while it seeks new permanent rights.

Paragraph 27 only applies where each of three conditions in paragraph 27(1) is satisfied. The operator must give a notice under paragraph 20(2) inviting the recipient to enter into an agreement conferring code rights; the notice must also invite the recipient to enter into an agreement on a temporary basis in relation to apparatus which is already on the land; and the recipient of the notice must have the right to require the removal of the apparatus in accordance with paragraph 37 or paragraph 40(1), but the operator must not yet have been required to remove it. It follows from the third of these conditions, paragraph 27(1)(c), that a claim for temporary code rights is only available after an existing agreement has come to an end.

Mr Wills pointed out that the third condition cannot be satisfied where an operator is in occupation of a site under a subsisting agreement which continues to bind the site provider, including under a tenancy which was being continued by Part 2 of the 1954 Act following its contractual termination. The site provider would not have the necessary right to remove the apparatus if the operator still had a tenancy of its own. Mr Radley-Gardner did not disagree with that proposition.

Mr Wills also relied on Compton Beauchamp which establishes that paragraph 20 and Part 4 of the Code cannot be used by an operator in situ to obtain a modification (or renewal) of its existing code rights. Only Part 5 can be used for that purpose (although Part 4 can be used to obtain additional code rights).

It followed, Mr Wills submitted, that an operator who seeks renewal of its existing code rights enjoyed under a lease which predates the commencement of the Code and which is being continued by the 1954 Act cannot bring a claim under the Code or serve a valid paragraph 20 notice.

The critical question for the purpose of this ground of appeal is therefore whether On Tower’s lease was still being continued by Part 2 of the 1954 Act when the paragraph 20/27 notice was given on 17 February 2023. If it was, the notice was premature, the condition in paragraph 27(1)(c) was not satisfied, and the claim under Part 4 (which seeks all the same code rights On Tower continued to enjoy and no additional rights) was impermissible.

Section 64(1) of the 1954 Act provides that, where an application has been made for a new tenancy under Part 2 of the Act and the effect of a notice to terminate the tenancy would be to terminate it earlier than the expiry of three months “beginning with the date on which the application is finally disposed of”, the effect of the notice is to terminate the tenancy at the expiry of that period of three months and not at any other time. By section 64(2), the date on which the application is “finally disposed of” means:

The parties disagree on when the application was “finally disposed of”. Mr Radley-Gardner submitted that the proceedings were finally disposed of when the time allowed by CPR r.7.5(1) for the service of the claim form expired, which was on 12 November 2022, without service having been achieved. On that basis the period of continuation of the tenancy provided by section 64 expired three months later on 12 February 2023, which was before the service of the paragraph 20/27 notice on 17 February 2023. Mr Wills submitted that the proceedings were not finally disposed of until On Tower’s application for an extension of time to serve the claim form was refused and the application was formally dismissed by the Deputy District Judge on 23 February 2023. The tenancy was continued for a further three months after that date and did not terminate until 23 May 2023.

In the FTT, Judge Jackson accepted Mr Wills’ submission that the tenancy continued until the application was formally dismissed and relied on the decision of the Court of Appeal in Aktas v Adepta (to which I have already referred) in support of that conclusion. But he did not accept the consequence urged on him by Mr Wills and held instead that On Tower was entitled to apply to the tribunal under Part 4 because it had received notice from the Council under paragraph 40 of the Code requiring it to remove its apparatus from the site.

Section 64(2) identifies the date on which “the proceedings on the application (including any proceedings on or in consequence of an appeal) have been determined and any time for appealing or further appealing has expired” as the date on which the application is finally disposed of for the purpose of starting time running under section 64(1). The critical question is therefore whether a claim for a new tenancy brought under Part 2 of the 1954 Act has “been determined” when the time for service of the claim form expires without service having taken place.

As Rix LJ explained in Aktas v Adepta at paragraph [91] “in England, unlike (all or most) civil law jurisdictions, proceedings are commenced when issued and not when served”. The proceedings are therefore in being before they are served. I was shown nothing in the CPR which deals with the status of the proceedings where service has not been achieved within the period of 4 months permitted by CPR 7.5(1).

It is clear from CPR 7.6(1) that a claimant may apply for an order extending the period for service of a claim form, even after time has expired. That does not suggest that when time expires the claim form ceases to exist as a claim form. In Aktas v Adepta, at paragraph [17], Rix LJ said that there was “some uncertainty about the correct way to close down an action which cannot go forward because service is out of time or cannot be effected in time”, but he did not suggest that “closing down” the action was unnecessary. On the contrary, he referred to the principle, reflected in CPR 3.10, that non-compliance with a procedural rule does not nullify the proceedings, or invalidate any step taken, unless the court so orders. At paragraph [18] he said that if a claim form is never served “the action appears to go into limbo, although it can of course be discontinued”. Finally, at paragraph [21], he said that a District Judge’s order setting aside a claim form served after the expiry of the permitted time did not seem “wide of the mark”.

I was also referred to Piepenbrock v Associated Newspapers and others [2020] EWHC 1708 (QB), in which a claim form issued on 11 October 2019 was not served until 13 February 2020. Nicklin J said that by the time it was served the claim form was “no longer valid” and had “lapsed”. Having refused various applications to extend time for service, to validate an ineffective attempt to serve the defendant’s solicitor before the expiry of time, and to dispense with service altogether, he concluded that the defendants were entitled to an order under CPR Part 11 that the Court had no jurisdiction to hear the claimant’s claim and a declaration that service of the claim form had been ineffective.

Neither of these authorities was concerned with the running of time under section 64 of the 1954 Act where a claim form has been issued but not served. But they suggest that a failure to serve a claim form within the permitted time does not determine the proceedings altogether. The claimant may apply for an extension of time, or the defendant may apply to set aside late service or to strike out the claim or for an order that the Court lacks jurisdiction. It would follow that, until a further order has been made, the proceedings remain in being, and cannot be said to have been “determined”.

It also seems to me that, in the context of section 64, the word “determined” implies more than an administrative termination; it suggests a judicial decision. It suggests that finality has been achieved and is used to identify the point in time when proceedings have been “finally disposed of”. Accordingly, it does not seem to me to be apt to refer to proceedings as having been determined when they are in abeyance for some procedural reason but might nevertheless be revived.

I was not referred to any authority on the operation of section 64 itself. The decision of the Court of Appeal in Shotley Point Marina (1986) Ltd v Spalding [1997] 1 EGLR 233 was concerned with the date on which proceedings were finally disposed of when a notice of appeal was not served in time and an application to extend time was subsequently dismissed. The Court held that time ran from the expiry of the time limit for filing a notice of appeal, and not from the date of dismissal of the application for an extension of time, but that conclusion turned on the meaning of “proceedings … on an appeal” in section 64(2) and does not shed light on the issue in this case.

I therefore agree with what appears to have been the Judge’s view that On Tower’s proceedings under the 1954 Act were not “determined” when the time for service of the claim form expired. But the Judge did not accede to Mr Wills’ submission that the notice served under paragraph 20/27 was invalid because it was served while On Tower’s tenancy was still being continued by the 1954 Act. The reason he gave in paragraph 42 of his decision was that on 30 May 2023 the Council had served notice under paragraph 40 to enforce removal of On Tower’s apparatus. Under those circumstances the Judge considered that the reference under Part 4:

There is no doubt that, by 30 May 2023 On Tower was vulnerable to an application for the removal of its apparatus. But that was not yet the position on 17 February 2023 when the paragraph 20/27 notice was given. At that time the tenancy was still being continued and On Tower was in the same position as the operator in Ashloch. The Judge’s reasoning left unresolved the question of whether a paragraph 20 notice could be served before the final termination of the tenancy which was being continued under the 1954 Act.

Mr Radley-Gardner did not invite me to adopt the Judge’s reasoning on this point, but instead put forward an alternative submission. That was that by 12 November 2022, when time for service of the claim form expired, On Tower ceased to have access to the 1954 Act renewal machinery. It then became an operator without access to any renewal regime apart from that under Part 4 of the Code. Whatever the procedural status of the claim form On Tower had no renewal rights when it served the paragraph 20 notice and was therefore entitled to invoke the Code to prevent its removal.

I have already rejected Mr Radley-Gardner’s analysis of the rights of an operator which has lost its opportunity to renew under the 1954 Act. It is clear that, on the view I take of the status of the proceedings after the failure to serve the claim form in time, On Tower was not entitled to serve a notice under paragraph 27 to secure temporary rights because its tenancy was still continuing. Even if I am wrong about the first ground of appeal, I would nevertheless hold that On Tower was also barred from serving a valid notice under paragraph 20 while its tenancy was being continued by the 1954 Act. On that basis its Part 4 claim was commenced without a valid request under paragraph 20 having first been made and without the required time for consideration of the request by the Council having elapsed. That is a further, free standing ground for dismissing the reference under rule 9(3)(a) of the FTT’s Rules.