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Playing the Mast-er Card: Does paragraph 21 of the Code trump the Landlord & Tenant Act 1954 in Telecoms Cases?

At last a claim to possession of land, on which a telecoms’ operators apparatus was sited, has been the subject of a judicial decision. But does it resolve the interplay of the two statutory regimes? Andy Creer provides a summary.

As those familiar with it will appreciate, the Electronic Communications Code restricts a landowner’s ability to remove a telecoms operator’s equipment from his land once it has been installed, even if such installation was without the owner’s permission. It creates a separate layer of statutory protection, in addition to any security of tenure the operator may have under the 1954 Act.

Crest Nicholson (Operations) Ltd v Arqiva Services Ltd, EE Ltd, Vodafone Ltd, Hutchinson 3G Ltd [28 April 2015] is a little-publicised ruling by DDJ Dack sitting at the County Court in Cambridge, which considered the landowner’s rights to remove a 1954 Act protected operator.

Crest served section 25 notices relying on ground 30(1)(f) of the 1954 Act as it wished to redevelop the site which terminated the operators’ tenancies on or about the date on which the contractual terms were due to expire. (For Arqiva this was in October 2015). At the same time the landowner served notices under paragraphs 20 and 21 of the Code, as a precursor to removing the apparatus in accordance with the specific security of tenure provided by the Code.

Crest apparently issued possession proceedings, in response to which Arqiva, EE and Hutchinson 3G all challenged the validity of their respective paragraph 21 notices, on the basis that the landowner was not yet entitled to give such notices (see text in bold).

Paragraph 21 (as amended) provides:-

  1. Where any person is for the time being entitled to require the removal of any of the operator's electronic communications apparatus from any land (whether under any enactment or because that apparatus is kept on, under or over that land otherwise than in pursuance of a right binding that person or for any other reason) that person shall not be entitled to enforce the removal of the apparatus except, subject to sub-paragraph (12) below, in accordance with the following provisions of this paragraph.
  2. The person entitled to require the removal of any of the operator's electronic communications apparatus shall give a notice to the operator requiring the removal of the apparatus.

Ignore the impact of the Code for one moment. Without exercising a break clause, a landowner would not be able to regain possession of land during the contractual term. Nor would they be able to do so prior to the expiry of a section 25 notice, as it specifies a date for the termination of the tenancy.

So, perhaps, it is unsurprising that the judge was not prepared to accept that a valid paragraph 21 notice could be served while the various operator’s contractual tenancies persisted.

Of course, what the case does not resolve is: what happens during any interim statutory continuation tenancy? Section 64 of the 1954 Act provides that where an application to the court is made, the tenancy does not determine until 3 months after the ‘final determination’ of the claim (which includes any appeal or application for permission). Will a landowner, who has successfully opposed the grant of a new tenancy under the grounds in section 30(1) of the 1954 Act, be able to argue that they should be deemed to be a person entitled to require the removal of the apparatus?

The lesson here is that, until the Law Commission’s recommendation that the 1954 Act should not apply to Code interests is enacted, landowners will still need to carefully consider the interplay between the two statutory regimes – the Code and the 1954 Act – before commencing litigation.

Pinsent Masons acted for Arqiva: www.out-law.com/en/articles/2015/may/county-court-tackles-long-standing-controversy-over-right-to-remove-telecoms-equipment-says-expert/