LC-2023-000734 - [2025] UKUT 00058 (LC)

There is a further preliminary issue, in separate proceedings in the Cardiff County Court, which was listed for determination at the Trial.

This further preliminary issue concerns a mobile communications site at Pound Hill, Nr Coedkernew, Newport, Gwent. The site is variously referred to in the documents as Pound Hill or Myrtle House. We will refer to this site as “the Pound Hill Site”.

By an agreement dated 12^th September 2001 Raymond Frederick Allen and Teresa Allen, who were described as the owners of the Pound Hill Site, granted Vodafone rights to install and use ECA, comprising a 15 metre lattice tower and other telecommunications apparatus, on the Pound Hill Site. APW acquired the freehold interest in the Pound Hill Site from Teresa Allen by a transfer dated 21^st January 2022. It is common ground between Vodafone and APW that the agreement of 12^th September 2001 took effect as a lease, which was not contracted out of the 1954 Act and which is capable of qualifying for the protection of the 1954 Act, as a business tenancy, if Vodafone is in business occupation of the Pound Hill Site, within the meaning of Section 23(1) of the 1954 Act.

By proceedings (“the Pound Hill Site Proceedings”) commenced by claim form issued on 22^nd March 2023 Vodafone made an application for the grant of new lease of the Pound Hill Site pursuant to Section 24 of the 1954 Act. In its amended acknowledgment of service, in response to the claim, APW put Vodafone to strict proof that it was in business occupation of the Pound Hill Site, within the meaning of Section 23 of the 1954 Act. On this basis APW contested Vodafone’s right to a new lease of the Pound Hill Site.

On 19^th February 2024 the Pound Hill Site Proceedings came before His Honour Judge Jarman KC for a hearing. The Judge made an order giving directions in terms agreed between the parties (Vodafone and APW). The order included a direction that the Pound Hill Site Proceedings be stayed so that the Tribunal could be invited to sit as the County Court in order to hear the Pound Hill Site Proceedings. The reason behind this and the associated directions in the Judge’s order was that there was an overlap between the issue of whether Vodafone was in business occupation of the Pound Hill Site and the issues in Preliminary Issue (a).

The Tribunal accepted the invitation to hear the Pound Hill Site Proceedings and, by an order made on 23^rd May 2024, the Deputy Chamber President directed that the Tribunal determine the following preliminary issue:

“In light of the provisions of s23(1) of the Landlord and Tenant Act 1954 is the Claimant entitled, pursuant to s24 of the Act, to a new tenancy?”

The Deputy Chamber President also directed that this preliminary issue be heard with the Preliminary Issues. As we understand the position, this direction was given with the agreement of the parties and pursuant to that agreement. As a result the preliminary issue in the Pound Hill Site Proceedings was heard with the Preliminary Issues at the Trial. This produced the following rather unusual situation. This decision, on the Preliminary Issues, is the decision of the Chamber President and Mrs Martin, sitting as the Tribunal. The determination of the preliminary issue in the Pound Hill Site Proceedings is set out in a separate judgment. This separate judgment is the judgment of the Chamber President, sitting alone as a judge of the County Court. It is stressed that this separate judgment is the judgment of the Chamber President, containing his determination of the preliminary issue in the Pound Hill Site Proceedings. Nevertheless, by reason of the overlap in issues, an inevitable by-product of hearing the Preliminary Issues and the preliminary issue in the Pound Hill Site Proceedings in one hearing (the Trial) is that the findings, reasoning and conclusions of the Tribunal in relation to the Preliminary Issues will necessarily have had some influence upon the findings, reasoning and conclusions of the Chamber President in relation to the preliminary issue in the Pound Hill Site Proceedings. For the same reason, substantial parts of this decision are in identical or similar terms to the judgment in the Pound Hill Site Proceedings.

We canvassed this matter with counsel at the outset of the Trial. Both Mr Radley-Gardner and Mr Watkin confirmed that they were content to proceed on the basis set out in our previous paragraph. As we have said, the determination of the preliminary issue in the Pound Hill Site Proceedings is set out in a separate judgment of the Chamber President, sitting as a judge of the County Court.