The Lands Tribunal has issued a judgment involving the validity of a notice served under paragraph 33 of the Code. In summary, the Tribunal confirmed the importance of making sure that proper legal process - in this case intimating to a landlord that a lease had been assigned - is followed if notices are capable of being relied upon.
Background:
The applicant, On Tower UK Limited (On Tower), is a provider of an electronic communications infrastructure system at a church in Kilmarnock (the Site). They wanted to terminate an existing code agreement (a lease) and obtain new code rights in terms of the Code.
The Church of Scotland General Trustees (the Church of Scotland) became the owner of the Site in April 2015.
In 2001, the previous owner of the Site had entered into a lease with another network operator. In 2015 (before the Church of Scotland bought the Site) that lease was assigned to yet another operator.
A second and third assignation of the lease were signed after the Church of Scotland bought the Site. However, in April 2019, the second assignation was intimated to the Church of Scotland's predecessor in title. In February 2020, the third assignation was also intimated to the Church of Scotland's predecessor in title. Assignations two and three were not intimated to the Church of Scotland, the owner of the Site.
In June 2022, On Tower purported to serve a notice under paragraph 33 of the Code. They sought termination of the existing agreement and the conferral of new code rights. A Lands Tribunal application followed in November 2023.
The Code:
Paragraph 33 of the Code provides a mechanism for parties to terminate an existing lease and acquire new code rights. It provides that an operator who is "a party to a code agreement" can serve a notice terminating the existing code agreement and proposing a new code agreement between the parties.
If, after the end of the period of six months beginning with the day on which the notice is given, parties have not reached agreement, an application can be made to the Lands Tribunal.
Legal Issues:
The transfer of a tenant's interest under a lease requires two stages: (i) a written assignation and (ii) intimation of that assignation to the landlord.
The Church of Scotland argued that On Tower did not have title and interest to bring the Lands Tribunal application as they were not a party to the code agreement. The Church of Scotland argued that assignations two and three were not valid due to the failure to intimate them to the landlord. As such, there had not been a valid transfer of the tenant's interest in the lease to On Tower.
On Tower sought to argue that assignation two and assignation three had been intimated to the Church of Scotland by being founded on and produced in the Lands Tribunal proceedings.
The Decision:
The Tribunal decided that, on the basis that there had been no intimation of assignation two or three, the paragraph 33(1) notice was invalid. On Tower was not the tenant under the lease and not a party to a code agreement when they served the paragraph 33(1) notice. The ensuing Tribunal application was also invalid.
This case is a salient reminder of the importance of ensuring that all notices and legal agreements are correctly addressed and intimated. The Code is generally viewed as being weighted in favour of mobile network operators. However, as the Lands Tribunal has shown, they still need to ensure that the correct process is followed.
