The Kay Park Parish Church Tribunal Decision – A Turning Point for Mast Landlords

Updated September 2026. This article was reviewed and corrected in September 2026. We added the published citation and date of the decision, corrected the description of the defect in the lease assignments and of the outcome, removed a rent figure that does not appear in the decision, and clarified that the decision is not binding in England and Wales.

Case Name: On Tower UK Limited v The Church of Scotland General Trustees (Kay Park Parish Church, Kilmarnock)

Citation: [2024] LTS 21 (Lands Tribunal for Scotland, case reference LTS/ECC/2023/0057)

Date: 18 July 2024

Kay Park Tribunal Decision: What Landlords Should Know

• Background
• Key Issues
• Why This Case Matters to UK Landlords
• What This Means for Landlords

Background

On 18 July 2024, the Lands Tribunal for Scotland delivered a pivotal ruling in the case of On Tower UK Ltd v The Church of Scotland General Trustees concerning a telecoms mast situated at Kay Park Parish Church in Kilmarnock. The site had experienced multiple lease assignments over the years, transitioning from Orange PCS to EE and Hutchison 3G UK (Three), then to Arqiva, and finally to On Tower UK Ltd (OTUK), then called Arqiva Services Limited. Crucially, the last two assignments (called assignations in Scots law) had been intimated (formally notified) only to the previous owners of the site, not to the current landowner, the Church of Scotland General Trustees.

OTUK sought new terms under paragraph 33 of the Electronic Communications Code. However, the Tribunal determined that OTUK was not the tenant, and so not a party to a Code agreement, when it served its paragraph 33 notice on 7 June 2022, rendering the notice, and the subsequent application, invalid.

Key Issues

• Lease Assignments and Tenant Legitimacy

The case underscored the importance of the rules on transferring a lease. In Scots law, an assignation of a tenant’s interest must be intimated to the landlord to be effective against the landlord. OTUK had acquired the site through a chain of transfers, but the later assignations had not been intimated to the General Trustees of the Church of Scotland, who had owned the site since 2015. The landowner also argued that the lease could not be assigned without its consent, but the Tribunal found nothing in the lease to support that argument. The Tribunal held that OTUK had no standing to serve its notice because it was not yet the tenant when it did so.

• Invalid Code Notices

Since OTUK was not the legal tenant, it had no right to serve a notice under paragraph 33 of the Electronic Communications Code. As such, its 2022 notice and its application to the Tribunal were invalid. The Tribunal noted, however, that the assignations had since been validated, so OTUK is now a party to the Code agreement and in a position to use the paragraph 33 procedure again by serving a fresh notice. This decision reinforces the importance of operators ensuring they have proper legal standing before attempting to invoke Code rights.

Why This Case Matters to UK Landlords

Although the Electronic Communications Code applies across the UK, this case turned on Scots property law (the rules on intimation of assignations), and decisions of the Lands Tribunal for Scotland are not binding on courts and tribunals in England and Wales. Even so, it is a useful reminder for mast landlords, particularly in cases involving:

• Defective lease assignments

• Disputes over notice validity

• Operator attempts to bypass landlord rights under the guise of the Code

Landlords should take note that an operator serving a Code notice must be a party to the Code agreement at the time. Where a lease has been transferred without the correct steps being followed, a notice may be open to challenge. As this case shows, however, the defect may later be put right, and the operator can then serve a fresh notice.

What This Means for Landlords

• Check assignment history: Ensure any tenant claiming rights under the Code has followed the proper procedures for transferring the lease.

• Scrutinise Code notices: Just because a notice is served doesn’t mean it’s valid — the sender must have legal standing.

• Seek professional advice: The evolving legal landscape makes it essential for landlords to be supported by experienced telecoms advisors and solicitors.

Related Services

If you need expert advice on the topics discussed in this article, our specialist surveyors can help:

• EE Phone Mast Leases

• Three Phone Mast Leases

• On Tower (formerly Arqiva) Phone Mast Leases

• Phone Mast Lease Renewals

• New Phone Mast Lettings

Call us on 01691 791543 or contact us online for a free consultation.