[2024] UKUT 151 (LC)

In Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] 1 WLR 3360 (“Compton Beauchamp”), the Supreme Court held that tribunals have no jurisdiction under Part 4 of the Code to impose a code agreement in favour of an operator which is already in occupation of a site under a tenancy protected by the 1954 Act (at least so far as the code rights sought are already conferred by the tenancy). Lady Rose discussed the relationship between the Code and the 1954 Act at paras [56] to [63] and explained that the dual security of tenure afforded to leases which conferred Code rights under the old Code (which were both within the old Code and within the 1954 Act) was thought by the Law Commission not to be necessary or helpful. That duplication could have been avoided in different ways, but the policy direction taken by the new Code was that rights of renewal under the Code are not available to operators in respect of leases protected by the 1954 Act. Leases in existence when the new Code commenced are covered by transitional provisions in Schedule 2 to the Digital Economy Act 2017 which specifically exclude any application for renewal under Part 5 of the Code. But once a new lease has been obtained under the 1954 Act it is a code agreement like any other, with any future renewal being governed by Part 5 of the Code. In that way full effect has been given to the principle that the new Code is not intended to apply to contracts entered into before it came into effect.

In Compton Beauchamp the Supreme Court therefore decided that (with very limited exceptions) it would be inconsistent with the way the Code was intended to work for an operator who has a lease which predates the Code to be given a choice whether to seek a new agreement under Part 4 of the Code or to renew its lease under the 1954 Act. If an operator wants a new lease conferring the same code rights it has to renew its existing lease under the 1954 Act and cannot not rely on the Code.

The further question which this case poses is whether an operator which has tried to obtain a new lease under the 1954 Act but has failed, may then seek renewal of its rights by applying to the tribunal under the Code. Mr Radley-Gardner KC says that the effect of the Code is that an operator which has exhausted its rights under the 1954 Act can always then apply under the Code. In some circumstances its application may be liable to be dismissed as an abuse of process or as an attempt to relitigate issues which have already been decided against it, but that does not affect the tribunal’s jurisdiction to consider the application. There may be other cases, and Mr Radley-Gardner says this is one of them, in which it would be appropriate for the tribunal to impose a new code agreement in favour of the operator, despite the fact that it has been unable, for whatever reason, to obtain a renewal of its rights under the 1954 Act.