AP Wireless II (UK) Limited v EE Limited & Anor

After expiry of a telecommunications lease, continued occupation and payment of rent do not create a periodic tenancy automatically. The court must assess objectively all the relevant circumstances, including negotiations, statutory protection and the parties’ dealings. A tenancy at will may remain appropriate where the parties are operating within the statutory communications regime and do not objectively intend an intermediate periodic tenancy.

An operator holding a periodic tenancy protected by the Landlord and Tenant Act 1954 cannot use Part 4 of the Electronic Communications Code to renew existing rights while retaining the existing tenancy. It must first terminate the tenancy in accordance with the applicable law. Amendments requiring ADR information in paragraph 20 notices do not retrospectively invalidate notices validly served before the amendment came into force.

EE Limited and Hutchison 3G UK Limited occupied a rooftop telecommunications site under a lease which expired on 28 February 2015. The lease had been contracted out of the protection of Part II of the Landlord and Tenant Act 1954. The operators continued to occupy and pay rent. Following changes of freehold ownership, the parties entered into an agreement in 2018 which mistakenly treated the occupation as governed by an existing Code agreement.

The First-tier Tribunal held that the operators occupied as tenants at will, that they could seek a new agreement under Part 4 of the Electronic Communications Code, and that a notice served in March 2023 remained valid despite the later introduction of ADR information requirements. The freehold lessee appealed. The respondents’ notice raised alternative arguments concerning periodic tenancies, renewal under the 1954 Act and termination at common law.

The central issues were whether the FTT had correctly characterised the occupation and whether the 2023 notice remained effective when the reference was made after the ADR amendment.

1. Appeal dismissed. The FTT was entitled to find that the respondents occupied under tenancies at will. No identifiable flaw in its evaluation of the undisputed primary facts justified appellate intervention.
2. The correct inquiry was objective. Payment and acceptance of rent is important but creates no presumption of a periodic tenancy. The court must consider all relevant circumstances, including negotiations, the wording of rent demands, the parties’ understanding of the statutory regime, and the potential consequences of protection under the Landlord and Tenant Act 1954. The 2015 rent demands, marked as being without prejudice to expiry, supported the conclusion that the parties were holding the position pending a formal arrangement. Later unqualified rent demands did not outweigh the other evidence.
3. The 2018 Agreement did not create a periodic tenancy. Objectively, it continued the parties’ mistaken understanding that the operators had protection under the Code. It was inconsistent with an intention to create an intermediate periodic tenancy.
4. On the alternative hypothesis that the operators had periodic tenancies protected by the 1954 Act, they could not use Part 4 of the Code to renew existing rights. The conditional nature of their rights to renew under the 1954 Act did not place them outside the reasoning in CTIL v Compton Beauchamp Estates Ltd [2022] UKSC 18. They retained protection for existing apparatus and could seek additional rights, but could not obtain the Code’s no-scheme valuation for renewal.
5. On the same hypothesis, a periodic tenancy would have to be terminated before a paragraph 20 notice could support a Part 4 reference. The doctrine of surrender by operation of law did not apply merely because a tribunal might impose a new agreement.
6. The March 2023 notice was valid. Paragraph 20(2A), introduced with effect from 7 November 2023, did not retrospectively apply to a notice validly served before that date. The respondents were entitled to rely on it when making the reference in August 2024.
7. Obiter, if paragraph 20(2A) had applied, omission of the ADR information would have invalidated the notice. Paragraph 88 expressly prescribed the consequence of non-compliance, leaving no room for a R. v Soneji (Kamlesh Kumar) analysis. The Section 43(4) argument was left undecided because it did not arise on the facts.

• First-tier Tribunal (Property Chamber): By a decision dated 17 April 2025, held that the respondents occupied the site as tenants at will, that the notice was valid, and that the Tribunal had jurisdiction under Part 4 of the Code.
• Upper Tribunal (Lands Chamber): Appeal dismissed on Preliminary Issues 1 and 4. The respondents’ challenges to the FTT’s decisions on Preliminary Issues 2 and 3 were also dismissed. The Section 43(4) argument was not determined.