Telecoms Code: Tribunal confirms “occupier” is a control test, not a title test

Summary

The First-tier Tribunal (Property Chamber) has dismissed a local authority’s jurisdictional challenge in a Part 5 lease renewal dispute under the Electronic Communications Code (the “Code”). 

In EE Ltd and Hutchison 3G UK Ltd v London Borough of Sutton (Cheam Leisure Centre), the Tribunal held, in a preliminary determination, that a local authority which had granted a headlease of its building nevertheless remained the “occupier” of the rooftop telecoms site. The key factor in this decision was that the Council retained practical management and control of the roof  where the apparatus was installed.

As a result, the telecoms lease to the operator constituted a valid “subsisting agreement” that was capable of renewal. The decision reinforces that “occupation” under the Code is a factual, control-based concept, not an enquiry into legal title or estate structure.

Background

EE Limited and Hutchison 3G UK Limited had maintained electronic communications apparatus on the roof of Cheam Leisure Centre since 1992 under a series of leases. The most recent lease, granted in 2014, expired in October 2022. Following stalled negotiations, the operators served a paragraph 33 renewal notice under the Code and issued proceedings to renew in July 2024.

The Council opposed the claim on jurisdictional grounds. It relied on a 2011 lease of the Leisure Centre to a management company, arguing that it had parted with possession and occupation of the roof before granting the 2014 lease to the operator. As only the ‘occupier’ can confer Code rights, the Council argued that the 2014 lease was not a valid Code agreement and could not constitute a subsisting agreement under the Code’s transitional provisions.

The operators argued that the Council had deliberately retained control of the roof and area where the equipment was installed, meaning it remained the ‘occupier’ for Code purposes.

The legal issue

The Tribunal was required to determine whether the Council was the ‘occupier’ of the relevant land at the time the 2014 lease to the operator was granted. If the Council was not the occupier in 2014, the lease to the operator would not be a subsisting agreement and the Tribunal would lack jurisdiction to renew it under Part 5.

The Tribunal applied CTIL v Compton Beauchamp Estates which confirms that:

• Occupation is a question of fact, not legal estate.
• It depends on physical presence and control, or, where that is absent, management powers under paragraph 105(6).
• An operator itself cannot be the occupier

Retention of control

Although the 2011 headlease demised the leisure centre generally, it was carefully drafted to ensure the Council retained rights over the roof for maintenance, and its retention of the apparatus. In particular, it:

• Excluded the telecoms apparatus and airspace from the demise.
• Reserved all income from the apparatus to the Council.
• Provided an exclusive right for the Council to negotiate with telecoms operators.
• Contained a prohibition preventing the tenant from interfering with the apparatus.
• Provided retained rights of access for installation and maintenance of the roof.

The Tribunal concluded that these provisions were consistent with the deliberate retention of operational control over the apparatus, which was inconsistent with the Leisure Centre tenant exercising management or control of the apparatus.

Occupation as a factual concept

The Tribunal emphasised that occupation under the Code is determined by substance, not form. Legal title or the existence of a headlease does not resolve the issue. The question is who, in practice, exercises management and control.

There was no evidence that the Leisure Centre tenant controlled the apparatus. By contrast, the Council expressly retained income, negotiated terms, maintained the roof and controlled access.

Accordingly, the Council remained the ‘occupier’ when the 2014 lease was granted and had the necessary authority to confer Code rights. The 2014 lease was therefore a subsisting agreement for the purposes of Part 5 and capable of renewal.

Outcome

The Tribunal determined the preliminary issue in favour of the operator:

• The 2014 lease was a subsisting Code agreement;
• The operators’ paragraph 33 reference falls within Part 5 jurisdiction; and
• The matter will proceed to a final hearing to determine the terms of the renewal Code agreement.

Key implications

This decision reinforces several important principles:

• Occupation turns on control. A landowner may remain the occupier even after granting a lease of the wider property if it retains practical management of the apparatus site.
• Title structuring will not necessarily defeat renewal. Granting a headlease or management lease will not always prevent Part 5 renewal where control is reserved. The Tribunal will prioritise operational reality over title structuring
• Reserved management powers are decisive. Retention of income, negotiation rights, maintenance obligations and access rights are strong indicators of occupation and/or control.

This article was co-authored by Eylul Atesogullari, Solicitor Apprentice at CMS.