Hold on, so you’re saying I can benefit from the Code even though I have the protection of the 1954 Act?

Summary

The Upper Tribunal has handed down an important judgment regarding the interplay of the Electronic Communications Code (“the Code”) and the Landlord and Tenant Act 1954 (“the 1954 Act”), which held (albeit on an obiter basis) that mobile operators who are in occupation of sites under periodic tenancies, which commenced before the Code came into force and which are protected under the 1954 Act, can nevertheless apply for a new Code agreement.

This decision, in the case of EE Limited and Hutchison 3G UK Limited v London Borough of Wandsworth [2026] UKUT 299 (LC), is a departure from the earlier obiter decision in Equipoint^[1] and will have significant implications for the negotiation of telecoms site agreements across England and Wales.

Background

This appeal arose from a dispute between EE Limited and Hutchison 3G UK Limited (the operators) and the London Borough of Wandsworth (the site provider) concerning a telecoms site on the roof of Castlemaine House in south London. 

The operators had occupied the site under a contracted-out lease which expired on 27 February 2013. Despite the expiry, the parties never formalised a new agreement and the operators continued in occupation paying rent on a quarterly basis. On several occasions the operators sought the landlord's consent for equipment upgrades, and in late 2018 they attempted to open negotiations for a new agreement under the Code.

In March 2024 the operators served notices pursuant to paragraph 20 of the Code seeking to have a new Code agreement imposed. The First-tier Tribunal ("FTT") dismissed the reference on all four grounds. The operators appealed.

Tenancy at will or periodic tenancy?

The first issue that the Upper Tribunal was asked to decide was whether the operators' post-lease occupation gave rise to a tenancy at will (terminable at any time and outside the 1954 Act) or a periodic tenancy (which would attract 1954 Act protection). If the operators were tenants at will, they would be entitled to seek the imposition of a new Code agreement pursuant to Part 4 of the Code. If they were periodic tenants then, based on the obiter comments in Equipoint, it would appear that they would not. 

The FTT had found that, as there had been no negotiations for a new tenancy after the expiry of the old lease in 2013 and that rent had been demanded and paid on the usual quarter days (as required under the old lease) for over a decade, a periodic tenancy had arisen. The Upper Tribunal disagreed. 

The UT held, overturning the FTT’s decision, that the operators were in occupation under a tenancy at will for the following reasons:

1. The original lease had been contracted out of the 1954 Act, and there was no evidence either party wanted a protected tenancy to arise after its expiry. The fact that a periodic tenancy would take the parties into a statutory regime they had previously chosen to exclude was, in the UT’s view, by itself a reason to infer a tenancy at will.
2. The operators' repeated requests for consent to carry out works were consistent with prudent management of a stable arrangement, rather than evidence of a long-term interest. Either a tenancy at will or a periodic tenancy would have been on the same terms as the old lease, so seeking consent was simply a sensible precaution.
3. The landlord's rent invoices consistently used the phrases "lease expired" and "holding over", indicating it was trying to protect itself from any inference that a new arrangement had been created.
4. The operators' continued presence on the site was explained by the defensive rights conferred under the old telecoms code, which allowed them to remain until the landlord took steps to remove them. There was no unexplained vacuum that needed to be filled by implying a periodic tenancy.

By contrast, in a non-Code related Court of Appeal decision from 2014, Erimus Housing Ltd v Barclays Wealth Trustees (Jersey) Ltd, the main reason why the Court determined there to be a tenancy at will, following expiry of the first contracted-out lease, was that the parties were continuing to negotiate for the grant of a new lease, inferring that the parties would not have intended to enter into an inconsistent intermediate arrangement. A key caveat to the Erimus decision was that there was nothing more which could lead to a different inference. In this appeal, the judge stated that there were other factors including those listed at paragraphs 1-4 above (and, in particular, the Code context), which meant that the Erimus approach was not applicable here.

As tenants at will the operators were entitled to apply under Part 4 of the Code for new Code rights. Since the earlier Equipoint decision was obiter on this issue, the UT’s decision on this appeal will have precedence.

Can a periodic tenant with 1954 Act protection use Part 4 of the Code?

Although the finding of a tenancy at will made this issue somewhat academic, the UT was asked to decide it in any event. Having done so, it reached a different conclusion from the earlier (again obiter) ruling in Equipoint. 

In Equipoint, the UT held that a periodic tenant with 1954 Act protection could not access Part 4 to renew its existing rights, because doing so would be inconsistent with the Supreme Court decision in Compton Beauchamp [2022] UKSC 18. The UT in this case disagreed. 

It held that a periodic tenant with 1954 Act protection can apply under Part 4 of the Code, even if they have the protection of the 1954 Act, to have a new agreement imposed. 

The key reasoning was:

1. The Supreme Court's decision in Compton Beauchamp rested on the fact that the operator in that case had the right to seek renewal under section 26 of the 1954 Act. A periodic tenant does not have that right - it can only respond if the landlord serves a section 25 notice or initiates renewal proceedings.
2. In practice, a landlord has no incentive to trigger the renewal process because it is already receiving a market rent, and a new Code agreement would result in lower consideration for the site. The periodic tenant's right to renew is, in practical terms, worthless.
3. Leaving such an operator unable to access Part 4 would create the kind of "black hole" that the Code is designed to prevent - the operator would be marooned with no ability to obtain the Code rights that it needs.
4. An unwritten periodic tenancy is not a "subsisting agreement" under the transitional provisions, so the policy against retrospective application of the Code does not apply.

The UT also suggested that this analysis would apply equally to a tenant under a written periodic tenancy which was a subsisting agreement, although that point was not before it and remains undecided.

Were the separate paragraph 20 notices valid?

The operators, as joint tenants, had served two identical paragraph 20 notices under a single covering letter, appending a single draft agreement naming both as joint lessees. The respondent argued that each operator should have served its notice on the other (as the remaining "occupier" once its own occupation was disregarded under the Compton Beauchamp principle).

The UT rejected this argument. 

In substance the operators were giving notice together, and the use of two copies of a notice rather than a single jointly signed notice did not change the position. The two operators were joint tenants giving notice together, and their joint occupation was to be disregarded just as a single operator's occupation would be.

Did the omission from the Ofcom prescribed form invalidate the notices?

Paragraph 88(2) of the Code requires a notice prescribed by Ofcom to be "in that form", and paragraph 88(3) states that a non-compliant notice is invalid. 

The operators had inadvertently deleted a sentence from two places in the supplementary information section of the Ofcom prescribed form. The deleted sentence reminded the operator of its obligation to consider alternative dispute resolution before making an application, but that information appeared in virtually identical wording in two other places in the same form. The respondent argued that this rendered these notices invalid. 

The UT held that the notice was nevertheless "in the form" prescribed. 

The question was not whether the respondent was prejudiced, but whether the prescribed information was actually missing from the form. Since the same information appeared elsewhere, there was nothing missing. The tribunal drew a distinction between this case and a situation where all instances of the required information had been omitted, which (consistent with obiter observations in Equipoint) would have been fatal.

Key implications and takeaways

The most significant aspect of this decision is the UT’s obiter conclusion that an operator in occupation of a site under a periodic tenancy which commenced before the Code came into force in 2017, and which therefore attracts the protection of the 1954 Act, may nevertheless be able to access Part 4 of the Code. 

That conclusion is contrary to the obiter decision in Equipoint and, arguably, to the Supreme Court’s reasoning in Compton Beauchamp. 

Following those decisions, the prevailing direction of travel appeared to be that an operator with 1954 Act protection could not also rely on the Code. Indeed, that was one of the key policy objectives of the Code in the first place, i.e. to avoid the dual protection problem which had arisen under the old regime, where operators could potentially benefit from both the Code and the 1954 Act at the same time.

The UT’s reasoning in this case appears to cut across that policy objective. 

If a periodic tenant with 1954 Act protection can still initiate a Part 4 application, site providers may once again face the practical consequences of overlapping statutory regimes, notwithstanding the apparent intention of the Code to separate the two. 

That is likely to matter in practice: there will be many live telecoms sites where operators remained in occupation after the expiry of pre-2017 arrangements, paying rent on a periodic basis, and where the parties have proceeded on the assumption that any renewal or termination route would be governed by the 1954 Act rather than the Code.

Until this point is determined conclusively (and not on an obiter basis, and it is not yet known whether the decision will be appealed), uncertainty will remain about how these arrangements should be renewed, varied or brought to an end. 

Operators are likely to rely on the decision to support Part 4 applications even where a periodic tenancy and 1954 Act protection are in play. 

Site providers, by contrast, may seek to argue that the decision should be confined to its facts, or that the earlier approach in Equipoint (also obiter) better reflects the structure and policy of the Code. 

Either way, the decision introduces a renewed area of uncertainty into the management of legacy telecoms sites.

On the question of tenancy status, the decision reinforces the approach taken by the FTT in Equipoint: where an operator holds over following the expiry of a contracted-out lease, and the continued occupation is explained by the protections of the old code, the appropriate inference is a tenancy at will rather than a periodic tenancy. The fact that rent has been paid and accepted on a periodic basis will not, without more, displace that inference and the tribunal has made clear that in the telecoms context there will almost always be "more" to consider.

The decision also provides practical guidance on notice formalities. Whilst accidental omission of information from the Ofcom prescribed form may not be fatal where the same information appears elsewhere in the form, the safest course remains strict compliance with the template.

The judgment can be accessed here.
 

^[1] AP Wireless UK (II) Limited v EE Limited and Hutchison 3G UK Limited (Equipoint) [2026] UKUT 45 (LC)