When is a landowner entitled to serve a paragraph 21 notice requiring the removal of telecoms apparatus from its land?

The Electronic Communications Code confers security of tenure on licensed providers of electronic communications services by restricting a landowner’s ability to require the removal of electronic apparatus. The Code operates separately from, and in addition to, the protection provided by part II of the Landlord and Tenant Act 1954 – and there is very little case law on the Code. Paragraph 20 concerns the “alteration” of apparatus. It applies to alterations that are necessary to facilitate improvements to land, which will not substantially interfere with the services provided by the Code operator’s network. It is, in effect, a “lift and shift” provision, because landowners who invoke paragraph 20 can request the owner of the apparatus to relocate it elsewhere (although the cost of this may fall on the landowner, as opposed to the operator). Paragraph 21 allows a person “who is for the time being entitled to require the removal of the operator’s electronic communications apparatus” to serve a notice asking it to leave (although the operator may then seek fresh rights under the Code). The relationship between the Landlord and Tenant Act 1954 and paragraph 21, in particular, is not a happy one. Crest Nicholson (Operations) Ltd v Arqiva Services Ltd [28th April 2015] is a county court case that deals with the question of whether a notice under paragraph 21 of the Code can be served during the contractual term of a tenancy. The operator’s lease was coming to an end and the landowner served a hostile notice under the Landlord and Tenant Act 1954, stating that it would oppose any application to renew the tenancy on ground (f)(redevelopment), together with notices under paragraphs 20 and 21 of the Code, as is common in such cases. The operator applied to have the paragraph 21 notice struck out on the ground that its tenancy had not yet ended. The landowner tried to persuade the county court judge that it had been entitled to serve a paragraph 21 notice, because it had given notice to terminate the operator’s tenancy under the Landlord and Tenant Act 1954. However, the judge ruled that the landowner serving the notice must be “for the time being entitled to require the removal” of the apparatus, and this was not the case here. The mere issue of a notice under section 25 of the 1954 Act did not give the landowner a current entitlement to require the removal of apparatus that was in situ under the terms of a lease that had not yet expired. Therefore, the judge refused to accept that the section 21 notice was valid. Under section 64 of the 1954 Act, a business tenancy will continue until any Landlord and Tenant Act proceedings are finally done and dusted.  The judge did not need to consider this, but his decision does not bode well for landowners who fear that the wording in paragraph 21 could be used to equally devastating effect during the statutory continuation of a business tenancy, making it much more difficult for them to satisfy ground (f) where land is occupied by an operator protected by the Code. Practitioners advising on this area of the law will also be interested to know that the landowner had indicated that it would take the case to appeal. However, it is understood that it has now accepted the decision. Allyson Colby is a property law consultant