Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor
[2023] EWCA Civ 825
Gravesham Borough Council v On Tower UK Limited
4 June 2024
[2024] UKUT 151 (LC)
Upper Tribunal
A company tried to renew its lease for a cell tower, first using an older law and then a newer one after failing the first attempt due to a missed deadline. The court said the company couldn't do that; it only gets one chance to renew under either law, not both sequentially.
Key Facts
- •Gravesham Borough Council (Council) appealed a First-tier Tribunal (FTT) decision refusing to strike out On Tower UK Ltd's (On Tower) claim for a new tenancy under Part 4 of the Electronic Communications Code (Code).
- •On Tower's previous application for a new tenancy under Part 2 of the Landlord and Tenant Act 1954 was dismissed due to late service of the claim form.
- •The mast site is on the roof of a building owned by the Council.
- •The Council sought to remove On Tower's apparatus after the 1954 Act application failed.
Legal Principles
Tribunals lack jurisdiction under Part 4 of the Code to impose a code agreement if the operator already occupies the site under a tenancy protected by the 1954 Act.
Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] 1 WLR 3360
The Code aims to avoid duplication of renewal rights under the Code and the 1954 Act.
Compton Beauchamp
An operator can only use Part 4 of the Code to obtain additional code rights, not to modify existing ones.
Compton Beauchamp
Abuse of process occurs when a party misuses or abuses court process, including relitigating decided issues or unjustly harassing another party.
Johnson v Gore Wood & Co [2002] 2 AC 1
A paragraph 27 notice (temporary code rights) is only available after an existing agreement ends.
Code, paragraph 27(1)(c)
Under section 64 of the 1954 Act, proceedings are 'finally disposed of' when all appeals are exhausted or abandoned, not merely when time for service expires.
Section 64, Landlord and Tenant Act 1954
Outcomes
The Council's appeal was allowed.
On Tower, having failed to obtain renewal under the 1954 Act, could not then apply under Part 4 of the Code. This would be inconsistent with the Code's scheme and policy against retrospective application of more favorable Code renewal provisions. Furthermore, the paragraph 20/27 notice was invalid as served while the tenancy was still being continued under the 1954 Act.
Similar Cases
EE Limited v AP Wireless II (UK) Limited
[2024] UKUT 216 (LC)
AP Wireless II (UK) Limited v On Tower UK Limited
[2024] UKUT 263 (LC)
Cornerstone Telecommunications Infrastructure Ltd v Gateway Properties Ltd & Anor
[2023] UKUT 188 (LC)
Harmohinder Singh Gill (as Trustee of the Gillcrest UK Pension Scheme) v Lees News Limited
[2023] EWCA Civ 1178