Telecoms round up: the Lupton Road case plus the Castlemaine case

EE Limited & Anor v The Mayor and Burgesses of the London Borough of Wandsworth (Castlemaine) [2026] UKUT 299 (LC)

This appeal case concerned a rooftop site at Castlemaine House in Wandsworth, held by EE and Hutchison 3G (together, the Operators) under a lease which expired on 27 February 2013. The operators remained in occupation and continued paying rent, but the lease had been contracted out of the Landlord and Tenant Act 1954 (1954 Act). The question was whether they had remained in occupation as periodic tenants or as tenants at will.

The FTT found that (i) the operators had become periodic tenants after the lease expired and that (ii) as a tenant with 1954 Act protection, they could not access Part 4 of the Code to obtain a new Code agreement. The Upper Tribunal disagreed on both points.

Overturning the FTT's decision, the Upper Tribunal decided that a tenancy at will had arisen. The FTT, it said, had not sufficiently taken into account that the old lease had been contracted out, that the rent demands referred to the lease as "expired" and the operators as "holding over" and that the operators had sought consent for upgrade works. All of these features, it said, pointed to an attempt to stop rights from being acquired.

On the second issue, the Upper Tribunal held that a periodic tenant with 1954 Act protection could make an application for a Code agreement under Part 4 of the Code. This was because, in practice, a periodic tenant has no independent right to initiate renewal under the 1954 Act (it can only respond to a notice served by the landlord) and so not being able to rely on Part 4 of the Code would be unsatisfactory.

A question on the validity of the notice was also raised, with the Upper Tribunal holding that despite two identical sentences being missing from the "Supplementary Information" section of the Ofcom-prescribed notice, the notice remained valid because the missing information appeared twice elsewhere in the form, conveying the same substance.

AP Wireless II (UK) Ltd v On Tower UK Ltd (Lupton Road) [2026] UKUT 286 (LC)

This appeal case relates to eight telecommunications mast sites, where On Tower UK Limited (On Tower) served notices under paragraph 33 of the Code on AP Wireless II (UK) Limited (APW), to terminate the current agreements and replace them with new ones. The question for the Tribunal was a jurisdictional one – did On Tower need to show that it was exercising Code rights for statutory purposes for the First-tier Tribunal (FTT) to have jurisdiction to make an order.

At first instance, the FTT held that the operator had to prove that it was exercising Code rights for "statutory purposes", and that this had to be demonstrated at the date of the agreement.  Both parties ultimately agreed that the FTT's findings on this point were wrong in law, although they disagreed on what the correct test should be.

APW argued for a two-stage test: first, that the applicant must prove its general status as an infrastructure provider; and second, that it must produce site-specific evidence of a concrete plan to use the site. On Tower's position was that an agreement is a Code agreement if it confers rights listed in paragraph 3 of the Code for the statutory purposes and there is no additional need to prove that rights are being exercised.

The Upper Tribunal agreed with On Tower. In order for the FTT to have jurisdiction under paragraph 34 to make an order continuing or terminating the existing agreement, or ordering a new code agreement, all that needs to be shown is that the agreement contains one or more of the rights listed in paragraph 3 and that those rights were conferred on an operator "for the statutory purposes" — which will normally be obvious from the terms of the agreement itself.

These decisions are two more examples of the ever-evolving law in the telecoms sphere and reinforce the scrutiny that will be placed on the meaning, and effect, of contractual and/or statutory provisions on questions such as the status of an agreement and the extent of parties' rights.