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Grounds of appeal
Grounds of appeal
The FTT dismissed the Council’s application to strike out On Tower’s claim under Part 4 and held that an operator whose right of renewal under the 1954 Act had become exhausted was entitled to pursue a claim for new rights under the Code. An operator does not have concurrent rights under the Code and the 1954 Act, and cannot choose which route to follow, but it does have the right to use the two regimes consecutively if necessary.
On behalf of the Council Mr Wills advanced three separate grounds of appeal against the FTT’s conclusion:
First, that the only route to the renewal of On Tower’s rights was under the 1954 Act, and having failed under that Act, on a proper interpretation of the statutory scheme, it was not entitled to try again under Part 4 of the Code.
Alternatively, for On Tower to try again under Part 4 of the Code was an abuse of process and its claim should be dismissed.
Alternatively, On Tower’s paragraph 20/27 notice had been served while its tenancy was being continued under the 1954 Act and while it still enjoyed Code rights and was therefore invalid and could not be used to as the basis of an application to the tribunal.
In their oral submissions both counsel found it convenient to consider the last of these grounds first, because it raises quite a short point which, if successful, might make it unnecessary to consider the more complicated issues which arise under the Code. But having considered the way in which the Judge dealt with the issues it appeared to me that his approach to the third issue could only be understood in the light of his earlier conclusion on the question of jurisdiction. I will therefore deal with the grounds of appeal in the order in which I have listed them above.
- Heading
- Introduction
- The issue
- The facts
- The relevant provisions of the Code
- Grounds of appeal
- Ground 1: Does the Code prohibit an operator which has exhausted its rights of renewal under the 1954 Act from making a further application under Part 4?
- Ground 2: Was On Tower’s application under Part 4 of the Code an abuse of process and should the reference be dismissed?
- Ground 3: Was On Tower prevented from serving a valid paragraph 20/27 notice on 17 February 2023 because its tenancy was still being continued by the 1954 Act?
- Conclusions