Telecommunications Infrastructure (Leasehold Property) Bill — House of Lords, 2020-06-29
Topic: Housing
Diana Barran (Conservative, Centre-right): My Lords, I shall speak first to Amendments 1 and 2. I thank noble Lords for again bringing forward these amendments, one of which is identical to an amendment tabled in Committee. I note that amendments to this effect were also tabled in Committee and on Report in the other place. At the fourth go around, I will do my best to clarify our arguments more effectively As I said earlier, I believe that the intention in tabling this amendment is to ensure that this Bill benefits those who rent their homes. The noble Lord, Lord Clement-Jones, quoted from my letter on this, and I agree entirely. However, as I stated in Committee and then in the correspondence with which I followed up, the Bill already has within its scope many of those who rent by virtue of the term "lessee in occupation". The Bill makes it clear, in paragraph 27B(1)(a) of the code it inserts, that "premises within the scope of this Part are occupied under a lease" A tenancy agreement, which also provides for exclusive possession, is a form of lease. Any tenant with exclusive possession is therefore in scope of this Bill, and no further provision needs to be made in this Bill for such a person The noble Lord, Lord Livermore, and my noble friend Lord Naseby both questioned the Government’s commitment to expanding access to broadband, and my noble friend Lord Naseby and the noble Lord, Lord Clement-Jones, quoted multiple examples of complexities in tenancies, but this Bill is about simplicity. There is one principle on which the ability to use a Part 4A order stands or falls: exclusive possession. Conversely, a tenant who holds a licence—a lodger, for example—is not within the scope of the Bill, because a licence does not give exclusive possession. To be clear: that does not preclude them from contacting their licensor to request a service. I do not think it is possible to be much clearer than this. I realise that the noble Lords may be seeking to ensure that there is no ambiguity and that the legislation provides judges with all the information they might need to enable a swift and easy decision; I understand that motivation. However, I believe we need to trust the specialist judges in the First-tier Tribunal in England and Wales and those sitting in equivalent courts elsewhere in Scotland and Northern Ireland, who deal regularly with such matters To be as clear as possible, I will cover some of the points that I alluded to in my letter and that the noble Lord, Lord Clement-Jones, raised. For the avoidance of doubt, not all tenancies need to be in writing or formed by deed, and the case law is relatively settled in relation to this. As the noble Lord, Lord Clement-Jones, mentioned, the Appellate Committee of the House of Lords, in its judgment in Street v Mountford in 1985, found that an agreement is a lease if it provides for the following four things: first, exclusive possession; secondly, of a defined premises; thirdly, for a fixed or periodic term; and fourthly, at a rent. This is a matter of substance rather than form; it does not become a lease simply if the parties describe it as a lease. In a later case, the Court of Appeal held in Ashburn Anstalt v Walter John Arnold and WJ Arnold & Company Limited in 1989 that there is no requirement that a lease reserve a rent. As I said earlier, the distinguishing feature of a lease is that the tenant has exclusive possession of a property Pegging the Bill to the concept of a lessee in occupation therefore ensures that the Bill includes tenants who rent under assured shorthold tenancy or assured tenancy agreements—which, as many noble Lords will be aware, are the most common forms of tenancy agreements. It also includes tenants at will and renewable tenancies, in so far as the tenancies that are renewable had provided for exclusive possession in the first place To be clear: we believe Amendment 2 would expand the scope—that is clearly its intention. It would be extended to include those who occupy a property without exclusive possession and therefore under a licence, which would include lodgers, people staying in holiday cottages and those staying in hostels. That is to say, the amendment would provide someone who may be a temporary guest in someone else’s home with powers over that property. I am sure your Lordships would agree that this is neither fair nor appropriate. The "lessee in occupation" allows this Bill to fit within the Electronic Communications Code while also describing that limited but nevertheless still important role for the person living in the property Amendment 2 would considerably increase the ambit of the Bill and make it very different from the model consulted on. This is something one should be mindful of when dealing with matters that consider property rights. It should also be noted that, for the reasons I have previously set out, Amendment 1 is not necessary because if the target premises are already "occupied under a lease", it follows that the person so occupying will have exclusive possession. That is because the existence of exclusive possession is one of the key elements of a tenancy agreement constituting a lease rather than a licence. In a letter dated 9 June 2020, we sought to explain this to all noble Lords who had expressed an interest in this Bill in Committee. To be clear once again: the Government’s intention in bringing forward this legislation is that those who occupy a flat or apartment under a tenancy agreement are in scope of this policy The noble Baroness, Lady Meacher, asked about the criteria for including things such as business parks. I think I said at an earlier stage of our debates that we would wait for evidence that there is a genuine demand and need to do that. The spirit of this Bill remains: we want to expand access to broadband while maintaining the balance in the relationship between landowner, operator and tenant My noble friend Lady McIntosh asked whether this would create further delay from the landlord. The whole point of this Bill is to try to make sure that people living in blocks of flats can access broadband in the timeliest way possible. I hope noble Lords are now assured by the fact that the Bill as drafted already works in respect of tenants and understand the reason behind "lessee in occupation" and why it may be a mistake to seek to extend the scope in the manner proposed I now move on to Amendment 3, which would allow telecommunications operators to apply to the courts for a Part 4A order without requiring a lessee in occupation in the property to request the provision of a service from an operator. It would therefore allow the operators themselves to determine whether the connection of the property to their network is in the public interest, in order to commence the Part 4A process. I note again that this amendment is identical to one tabled in Committee and similar in concept to others tabled throughout this Bill’s passage in both this House and another place I appreciate the intention behind the amendment, which is to remove what noble Lords see as an unnecessary step in the process, and I am well aware that this is a point on which telecoms operators have been particularly active. However, I cannot support the amendment.