This decision concerns an appeal addressing whether a tenancy at will or a periodic tenancy had risen on the expiration of a fixed term, contracted out lease and resulting ability (or inability) of the operator to seek a new agreement under the Electronic Communications Code.
In this appeal between AP Wireless II (UK) Limited (the Site Provider) and (1) EE Limited and (2) Hutchison 3G UK Limited (the Operators), known as the Equipoint case, the Upper Tribunal (UT) considered whether the First Tier Tribunal (FTT) was right in its determination of a number of preliminary issues, namely:
- whether the Operators occupied the site pursuant to a tenancy at will or periodic tenancy;
- if the latter, whether the Operators were precluded from seeking a new code agreement under paragraph 20 of the Electronic Communications Code (the Code); and
- whether the Operator's' paragraph 20 notice under the Code was invalid.
The Operators had been granted a Lease dated 24 March 2010 for a term of 5 years and contracted out of the security of tenure protection of Part II of the Landlord and Tenant Act 1954 (the 1954 Act). The contractual term of the Lease expired in 2015 and the Operators had continued to maintain their apparatus on the Site. In March 2023 the Respondents served notice under paragraph 20 of the Code. There was no agreement reached between the parties and in August 2024 the Operators commenced proceedings against the Site Provider pursuant to paragraph 20 of the Code to impose an agreement conferring code rights.
The FTT determined that the Operators had a tenancy at will and so were entitled to seek a new code agreement under paragraph 20 of the Code. The Site Provider appealed on the grounds that the FTT should have determined that the Operators instead had an implied periodic tenancy protected by the 1954 Act and so had no right to make an application under the Code. In the alternative, if the arrangement was a tenancy at will, the paragraph 20 notice was invalid because it failed to contain prescribed information (notwithstanding that the notice was served before the introduction of this requirement).
The UT started by noting the limits to its ability to re-evaluate the facts and was instead concerned with whether the FTT had directed itself correctly as a matter of law.
- With regards to occupational status of the Operators, the UT agreed with the FTT that there was a tenancy at will following the expiry of the fixed term, on the basis that it was clear that neither party intended or regarded the Operators as occupying the Site pursuant to a periodic tenancy.
- If it had been a periodic tenancy with 1954 Act protection, then following the Supreme Court decision in CTIL v Compton Beauchamp Estates Ltd [2022], an operator with an agreement protected by the 1954 Act did not have the option of renewing its rights under the Code, but had first to exercise its rights of renewal under the 1954 Act.
- As to whether the Operator could rely on the paragraph 20 notice, the missing information relating to alternative dispute resolution was not a requirement at the date the notice was served nor did the wording suggest it should have retrospective effect. The UT agreed with the FTT that this technical omission did not invalidate the paragraph 20 notice, since it was not required to include it. However that the UT said the notice would have been invalid had the ADR prescribed information been required at the date it was served.
The Appeal was dismissed, which meant the Operator was entitled to apply for a new lease under paragraph 20 of the Code on terms which were more generous to it than it would have been under the 1954 Act.
This decision serves as a reminder of how the occupational status of an operator can have a direct impact on the basis upon which it can seek a renewal lease (i.e. under the Code or the 1954 Act) in line with the Compton Beauchamp decision. It is also a reminder of the importance of timely estate management. The ambiguities over the basis of the Operator's occupation could have been avoided had steps been taken to regularise the Operator's occupation on expiration of the contracted-out lease. Instead, these issues had to be resolved by the FTT and on appeal to the UT.
