Gravesham Borough Council vs On Tower UK Limited

This case involved a dispute between Gravesham Borough Council and On Tower UK Limited over the renewal of a telecommunications site lease and the applicability of the Electronic Communications Code.

TLDR:

• Gravesham Borough Council opposed the renewal of a telecommunications site lease.
• On Tower UK Limited sought a new Code agreement under the Electronic Communications Code after failing to renew under the Landlord and Tenant Act 1954.
• The Upper Tribunal ruled in favor of Gravesham Borough Council, striking out On Tower's claim.

The dispute arose from a telecommunications mast site lease on the roof of The Hive, a block of flats owned by Gravesham Borough Council. The lease was originally granted in 1997 and continued under the Landlord and Tenant Act 1954 after its expiration in 2017. On Tower UK Limited, which had acquired the lease, sought to renew it under the 1954 Act but failed due to procedural delays.

On Tower then applied to the tribunal for a new Code agreement under the Electronic Communications Code. The First-tier Tribunal (Property Chamber) initially allowed On Tower's claim, but Gravesham Borough Council appealed.

The Upper Tribunal, led by Deputy Chamber President Martin Rodger KC, considered whether an operator could seek a new Code agreement under Part 4 of the Code after failing to renew under the 1954 Act. The tribunal examined the relationship between the Code and the 1954 Act, referencing several key cases, including Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and Crawley Borough Council v EE Ltd.

The tribunal concluded that allowing an operator to seek a new Code agreement after failing under the 1954 Act would be inconsistent with the intended operation of the Code. The tribunal emphasized that the transitional provisions of the Digital Economy Act 2017 were designed to phase in the new Code rights, not to allow operators to circumvent the 1954 Act.

The tribunal also addressed the issue of abuse of process, noting that On Tower's failure to serve the claim form in time was a procedural error, not an abuse of process. However, the tribunal found that On Tower's application under Part 4 of the Code was premature and invalid since its tenancy was still being continued by the 1954 Act at the time of the application.

Ultimately, the Upper Tribunal allowed Gravesham Borough Council's appeal and struck out On Tower's notice of reference. The decision underscored the importance of adhering to the procedural requirements of the 1954 Act and the limitations of the new Code.

Legal representatives: Jonathan Wills, instructed by Freeths LLP, for the appellant. Oliver Radley-Gardner KC, instructed by Gowling WLG (UK) LLP, for the respondent.

Judicial Panel: Deputy Chamber President Martin Rodger KC

Case Citation Reference: [2024] UKUT 151 (LC)