Upper Tribunal decision upheld by Court of Appeal

England and Wales

The Court of Appeal has upheld the decision of the Upper Tribunal in Cornerstone Telecommunications Infrastructure Limited v Ashloch and another[2019] UKUT 338 (LC).

The decision provides clarity on the relationship between the Code and 1954 Act protected tenancies which may clear a path to resolution of a number of ongoing renewals.

Where an operator remains in occupation under a tenancy which is protected by the Landlord and Tenant Act 1954 (“1954 Act”) security of tenure provisions, it cannot seek a new Code agreement under Part 4 of the Code. The operator must follow the procedure under the 1954 Act and apply to the County Court for a new tenancy, the terms of which are to be determined in accordance with the 1954 Act. The new tenancy ordered by the Court will be a Code agreement, and therefore cannot attract the protection of the 1954 Act.

Part 5 of the Code sets out the primary basis upon which an operator may seek renewal of an agreement, but Part 4 cannot confer wider rights to a sitting occupier operator than those conferred by Part 5. Any other decision would have been contrary to the Court of Appeal’s decision in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] UKUT (LC) (see CMS Law-Now dated 1 November 2019). Part 5 cannot be used in relation to a 1954 Act protected tenancy.

The Court of Appeal also confirmed that an operator occupying a site pursuant to a subsisting agreement cannot give notice for a new agreement under paragraph 20 of the Code, save in the limited circumstances provided by statute.

The Government is consulting on parts of the Code which are not operating in practice as intended by statute (see CMS Law-Now dated 28 January 2021)