R (Sainsbury’s) v Wolverhampton City Council [2011] 1 AC 437. Where there is any ambiguity, the construction chosen will be the one that interferes least with private property rights. It seems to me that that principle is relevant both to the construction of the Code and to the exercise of the Tribunal’s discretion under the Code, for example in its judgment as to what are the “appropriate” terms to be imposed alongside Code rights. I bear this closely in mind in assessing the preliminary issues, all of which challenge the Claimant’s application on the basis that it is out of line with the requirements of the Code – whether as to the form of the notice, the nature of the rights sought, or the OFCOM direction that authorises the Claimant to seek them.” 23. In response to the Respondents arguments that excessive rights were being sought over an excessive area, the Claimant’s solicitors wrote to the Respondent’s solicitors on 15th October 2021 [285-286]. In that letter the Claimants limited the area of the “Land” to be subject to the MSV to that shown yellow (“the Yellow Land”) on the plan at [S199]. On the basis that the Claimants were only seeking rights over NGL206051 and NGL18370 which is owned by the First Respondent, the Second Respondent was removed from the draft MSV Agreement. Tee lopping rights which had also been contentious were also removed. 24. At the hearing Mr Cochrane confirmed that the Claimant only seeks rights over the Yellow land. Mr Cochrane referred to Keast at paragraphs 27-29 where Upper Tribunal Judge Cooke considered “the effect of a discrepancy between the paragraph 20 notice and the claim in the Tribunal”. The remarks at paragraphs 28 and 29 are clearly obiter. However, they are crucial to the arguments advanced by Mr Cochrane on the question of validity: “28. In view of what I have decided about the rights claimed in this case there is no need for me to say any more about this further point. And indeed it will be unusual for the rights sought in a paragraph 20 notice to be different from those sought in the Tribunal proceedings for the simple reason that the notice should contain a draft of the agreement sought, and that same draft will be the starting point of the Tribunal reference. Negotiations with the occupier of the land will, almost invariably, have begun long before the paragraph 20 notice is drafted and there may well be changes of position on both sides in the course of negotiations. The paragraph 20 notice is likely to be drafted only when a Tribunal reference is obviously going to be necessary and therefore will append the same draft agreement that the Code operator will seek from the Tribunal. 29. That being the case, the point argued here is probably academic, but at any rate it is best left for decision if it actually arises. Obviously the Tribunal cannot impose upon the occupier of land any Code right that has not been sought in the paragraph 20 notice; that is perfectly clear from the terms of paragraph 20. On the other hand, where the reference to the Tribunal seeks fewer rights than were sought in the paragraph 20 notice, and the Respondent was in fact misled or pressurised or inconvenienced by the notice, then that is a matter that may weigh with the Tribunal in the exercise of its discretion as to what are the appropriate terms to be imposed upon the occupier of the land. But my provisional view is that it is unlikely that that sort of discrepancy will invalidate the paragraph 20 notice.” 8 25. We find that the fact that the Claimants, at the eleventh hour, now seek rights over a very substantially smaller area of “Land” does not invalidate the paragraph 26(3) Notice. The Second Respondent is not prejudiced as the Claimant no longer seeks for it to be bound. If the First Respondent has been “misled, pressurised or inconvenienced” that can be reflected in the terms to be imposed. For completeness we should make it clear that whilst the area of the “Land” specified in relation to the Second Respondent could potentially be described as excessive that is not the case as far as the First Respondent is concerned. The Notice as originally drafted proposed rights over the whole of NGL18370 and NGL206051. Turning to the revised plan at [S199] the “Land” over which rights were initially sought is edged red. The “Yellow Land” covers a little under half of that area. The photograph at [S56] shows the Church and the Forum. We can gauge scale from the containers and vehicles. In the context of an MSV we find that neither the area of “Land” over which rights were initially sought against the First Respondent nor “the Yellow Land” can be described as excessive. Finally, those parts of Mr Denyer-Green’s submissions in relation to terms and duration fall away as the parties have now finally agreed the form of the MSV Agreement (see below). 26. However, Keast does not solve all the Claimant’s problems. There is a sliver of “the Yellow Land” on the map [S199] which lies outside NGL206051. It is the area immediately to the rear of the Forum which lies outside the red line drawn on the Land Registry plan. Following Keast that sliver of “the Yellow Land” cannot be the subject of interim rights as it was not included within the Paragraph 26(3) Notice. Who occupies the land at the rear of the O2 Forum? 27. We now turn to a Lease dated 2nd July 2018 and made between Folgate Estates Limited (1) and Academy Music Group Limited (2) whereby “The Forum, 9-17 Highgate Road London NW5” was demised for a contractual term of 20 years from and including 25th March 2018 at an initial Annual Rent of £340,000 per annum subject to review [S16-54]. 28. The demised property is shown edged red on the plan at [S25]. The land edged blue is the subject of Ancillary Rights set out at paragraph 3 [S27] of the Lease and in particular: “3.2 The right in common with all persons so authorised to pass and repass at all times and for all proper purposes connected with the Premises with or without vehicles over the Landlord’s land edged blue on the plan annexed hereto for the purpose of identification only. 3.3 The right to park vehicles on the Landlord’s land edged blue on the plan annexed hereto for the purpose of identification only belonging to or authorised by the Tenant for all proper purposes connected with the Premises subject to the right of all persons authorised by the Landlord to pass and repass on foot.” There is also a reference to the same area of land, albeit not specifically referred to as edged blue, at clause 4.1.7.6 [S30]: “During any development of the rear yard, access to more than one high sided vehicle (including tour buses) will be permitted and venue related vehicles can park in the yard for as long as reasonably necessary at the Property in the course of the Tenant’s business.” 9 29. The significance of the land edged blue on the Lease plan is that it forms a sizeable part of “the Yellow Land”. Mr Denyer-Green relies on Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2019] EWCA Civ 1755. The Court of Appeal upheld the decision of the Upper Tribunal that only an occupier can confer Code rights either voluntarily or by compulsion. We were referred in particular to paragraph 54 of the Judgement in Compton Beauchamp per Lewison LJ: “In my judgement, therefore, the UT were correct to hold that whether a person is an occupier for the purposes of the Code is “a question of fact rather than legal status; it means physical presence on and control of the land” 30. In order to determine who is in occupation of the land edged blue on the Lease plan and crucially who is occupation of that part of “the Yellow Land” which is coterminous with it, we departed from summary procedure and received sworn evidence from Paul Brosnahan who is a director of the First LC – 2021 – 000425 Land on the west and south west side of Greenwood Place, Kentish Town