On Tower UK Limited (Respondent) v British Telecommunications PLC (Appellant)

Permission to Appeal application lodged

Case summary
Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2025/0168

Parties

Appellant(s)

British Telecommunications PLC

Respondent(s)

On Tower UK Limited

Issue

For a notice served pursuant to paragraph 31 of the Electronic Communications Code (“the Code”) to be valid, is it sufficient to comply with the statutory requirements in the Code or is it also necessary to comply with any contractual notice requirements for terminating the agreement? Did the Appellant serve a valid contractual break notice on the Respondent?

Facts

The Electronic Communications Code (“the Code”) is contained in schedule 3A of the Communications Act 2003. The Code regulates the relationship between operators providing electronic communications networks and occupiers of land upon which it is desirable to place electronic communications apparatus (“ECA”). The Appellant, (“BT”), has, amongst other things, a long leasehold interest in a former telephone exchange building at Kenton Road, Harrow (“the building”). By a lease dated 23 December 2021, BT granted the Respondent, (“OT”), rights in respect of ECA on the roof of the building and a number of others (“the OT Lease”). It is common ground that the OT Lease is a code agreement for the purposes of Part 2 of the Code. Clause 5.8 required BT to serve a written notice on OT if it wished to exercise its right to terminate the OT Lease for any of the five reasons identified in clause 5.8(b)(i) – (v). Clause 5.8(b)(v) applies where the landlord wishes to terminate the lease for any reason other than the reasons set out in sub-clauses 5.8(b)(i) to (iv). On 3 October 2022 BT served two notices on OT: (1) a contractual notice relying on clause 5.8(b)(v) of the OT lease (“the contractual notice”); and (2) a termination notice pursuant to paragraph 31 of the Code (“the paragraph 31 notice”). On 21 March 2023, OT applied to the Upper Tribunal (Lands Chamber) under paragraph 34 of the Code for an order that OT may continue to exercise its existing code rights under the OT’s Lease, alternatively that the Tribunal may order the modification of the terms of that agreement. Following a hearing to determine three preliminary issues, the Upper Tribunal held that: (1) the OT Lease was a code agreement; (2) in order for the paragraph 31 notice to be valid, BT only needed to comply with the statutory requirements under the Code; BT did not need to additionally comply with the contractual requirement to serve a valid break notice; and, (3) in any event, a valid contractual break notice had been served. The paragraph 31 notice was therefore valid. The Court of Appeal allowed OT’s appeal in respect of issues 2 and 3. BT now appeals to the Supreme Court on both issues.