Section 62 — Rent under tenancies conferring code rights: Northern Ireland

(1) The Business Tenancies (Northern Ireland) Order 1996 (S.I. 1996/725 (N.I. 5)) is amended as follows.

(2) In Article 18 (rent under new tenancy), after paragraph (5) insert— (6) Paragraphs (2) to (5) do not apply to a new tenancy granted in pursuance of an order of the Lands Tribunal where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights (within the meaning of paragraph 3 of that Schedule). (See instead Article 18A.)

(3) After Article 18 insert— Rent under new tenancy conferring code rights 18A (1) This Article applies where— (a) the current tenancy is a subsisting agreement within the meaning of Schedule 2 to the Digital Economy Act 2017, and (b) the primary purpose of the current tenancy is to confer code rights. (2) In the absence of agreement between the landlord and the tenant as mentioned in Article 18(1), the rent payable under a new tenancy granted in pursuance of an order of the Lands Tribunal shall be such amount or amounts determined by the Lands Tribunal as represent the market value of the landlord’s agreement to confer the code rights conferred by the new tenancy. (3) For this purpose the market value of a landlord’s agreement to confer code rights is, subject to paragraph (4), the amount that, at the date the market value is assessed, a willing buyer would pay a willing seller for the agreement— (a) in a transaction at arm’s length, (b) on the basis that the buyer and seller were acting prudently and with full knowledge of the transaction, and (c) on the basis that the transaction was subject to the other provisions of the tenancy granted in pursuance of the order of the Lands Tribunal. (4) The market value must be assessed on these assumptions— (a) that the rights to which the transaction relates do not relate to the provision or use of an electronic communications network; (b) that paragraphs 16, 17 and 17A of the electronic communications code (assignment, and upgrading and sharing) do not apply to the rights or any apparatus to which those rights could apply; (c) that the rights in all other respects correspond to the code rights; (d) that there is more than one site which the buyer could use for the purpose for which the buyer seeks the rights. (5) In this Article— references to “code rights” are to be read— (a) in relation to the current tenancy, in accordance with paragraph 3 of Schedule 2 to the Digital Economy Act 2017; (b) in relation to a new tenancy granted in pursuance of an order of the Lands Tribunal, in accordance with paragraph 3 of the electronic communications code; “the electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003; “electronic communications network” has the meaning given by section 32(1) of that Act.