[2024] UKUT 151 (LC)

In 1997 the Council granted a lease of the mast site on the roof of The Hive to a predecessor of On Tower for a term of 20 years. The term expired on 31 March 2017, but the tenancy of the site was continued by Part 2 of the 1954 Act.

The new Electronic Communications CodeinSchedule 3A of the Communications Act 2003 came into force on 28 December 2017. It did not affect the security of tenure of operators under existing agreements covered by the 1954 Act.

In September 2019 the continuing tenancy was assigned to On Tower which continued to occupy the mast site for the purpose of its business of providing a telecommunications infrastructure system.

For a number of years the Council has been anxious to undertake repairs to the roof of the building to prevent water from leaking into the flats below, but no agreement had been reached with On Tower or its predecessor to enable those works to be carried out. On 17 December 2021 therefore, the Council gave notice to On Tower under section 25, 1954 Act, terminating its tenancy on 30 June 2022 and notifying it that a renewal of the tenancy would be opposed.

On Tower was entitled to apply to the County Court for a new tenancy of the site under section 24(1) of the 1954 Act. If it did so, the effect of section 64(1) would be that the tenancy would continue until it terminated at the expiry of the period of three months beginning with the date on which the application was “finally disposed of”.

On 28 June 2022 On Tower’s solicitors filed a claim for a new tenancy in the County Court at Birmingham. The Court issued the claim on 12 July and returned it to On Tower’s solicitors for service on the Council.

CPR r.7.5(1) allows a period of four months for the service of a claim form within the jurisdiction, which in this case expired on 12 November 2022. Although the Council’s solicitors pressed for early service of the claim form On Tower’s solicitors did not oblige them. Evidence provided to the FTT explained that the first solicitor dealing with the matter left the firm at some unspecified point during those four months, and that the second was involved in an accident and was off work for several weeks. A third solicitor became involved but, due to human error, service of the claim form did not take place until 18 November 2022. At the same time On Tower made an application under CPR r.7.6 for an order extending the period for service of the claim form, but on 23 February 2023 that application, and the claim itself, were dismissed by the Court. There has been no appeal against that dismissal.

On 17 February 2023, shortly before the hearing of its application to extend time for service, On Tower had given notice to the Council under paragraph 20 of the Code requiring it to enter into a new agreement under Part 4 of the Code; the notice included a request that the Council also enter into an agreement for temporary rights under paragraph 27 of the Code while the terms of the main agreement were negotiated or determined. The Council responded by giving On Tower notice under paragraph 40 of the Code, requiring it to remove its apparatus from the roof of the building.

On 27 June 2023, with no new agreement having been entered into, On Tower referred its paragraph 20 request to the tribunal. On 19 July the Council applied to strike out the reference, but by his decision handed down on 18 October Judge Jackson refused that application.