AP Wireless II v EE Limited: tenancy at will versus periodic tenancy in telecoms sites

The Upper Tribunal has upheld a First-tier Tribunal decision confirming that telecommunications operators occupying a rooftop site after their lease expired held a tenancy at will rather than an implied periodic tenancy protected by the Landlord and Tenant Act 1954.

EE Limited and Hutchison 3G UK Limited had occupied a Birmingham rooftop site under a five-year lease which expired on 28 February 2015, having been contracted out of the 1954 Act. The operators remained in occupation, paying annual rent, whilst the freehold changed hands twice. In 2023, they served notice under paragraph 20 of the Electronic Communications Code seeking imposition of a new code agreement.

AP Wireless II, which had acquired a reversionary lease in 2024, challenged the tribunal's jurisdiction, arguing the operators held an implied periodic tenancy with 1954 Act protection, preventing them from accessing the Code's renewal provisions without first using their statutory renewal rights.

Objective assessment of intentions

Mr Justice Edwin Johnson emphasised that determining whether a tenancy at will or periodic tenancy arose required objective assessment of all circumstances, not subjective intentions. The tribunal correctly applied principles established in Javad v Aqil and Barclays Wealth Trustees v Erimus Housing.

Three factors proved decisive. First, rent demands during 2015-2017 were marked "without prejudice to expiry on 28/02/2015"—wording the judge found significant in demonstrating no intention to create a periodic tenancy. Subsequent demands using generic "rent w/o prejudice" wording reflected unthinking business practice rather than legal significance.

Second, both parties' dealings demonstrated reliance on statutory protections under the old Telecommunications Code and subsequently the Electronic Communications Code, rather than creation of contractual tenancy arrangements. A 2018 agreement between the parties, though misconceived regarding existence of a code agreement, evidenced their understanding that occupation was governed by the statutory framework—"the very antithesis of intending to create a periodic tenancy".

Third, the existence of potential 1954 Act protection militated against inferring a periodic tenancy. Both the original landlord (a property investment business) and subsequent developer owner had clear reasons to avoid tenancies carrying statutory protection. The operators had previously accepted a contracted-out lease.

Code rights and periodic tenancies

The judgement addressed subsidiary issues relevant if an implied periodic tenancy existed. Following CTIL v Compton Beauchamp Estates, operators with periodic tenancies protected by the 1954 Act cannot bypass renewal under that Act by seeking new agreements under Part 4 of the Code. Whilst periodic tenants cannot initiate renewal proceedings themselves, allowing dual routes would create unworkable jurisdictional conflicts between county courts and the tribunal.

The requirement to terminate any periodic tenancy before serving a paragraph 20 notice was confirmed, following Gravesham Borough Council v On Tower UK Limited. The doctrine of surrender by operation of law cannot circumvent this requirement when tribunals impose code agreements.

Validity of pre-amendment notices

A notice served before the Product Security and Telecommunications Infrastructure Act 2022 introduced requirements for alternative dispute resolution information remained valid for subsequent tribunal applications. Applying principles from Lipton v BA Cityflyer, legislation is presumed not to operate retrospectively without clear contrary intention. The notice's validity was determined when given, not when proceedings commenced.

This decision provides important guidance on occupation status at telecommunications sites following lease expiry, particularly where parties maintain informal arrangements whilst property ownership changes hands. The objective assessment framework and weight given to parties' reliance on statutory protections rather than contractual arrangements will influence future disputes.

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