Background
EE and Hutchinson 3G operated equipment on the roof of Castlemaine House under a 2004 lease that expired in 2013. The lease had been contracted out of the Landlord and Tenant Act 1954. The operators remained in occupation, paid quarterly rent, and later sought a new agreement under Part 4 of the Electronic Communications Code.
The First-tier Tribunal held that their post-expiry occupation was under a periodic tenancy protected by the 1954 Act, rather than a tenancy at will. It consequently found that they could not use Part 4 of the Code, and also held that their two paragraph 20 notices were invalid because they were separately issued and omitted duplicated ADR wording from part of Ofcom’s prescribed form.
The Court’s Holding
The Upper Tribunal allowed the appeal. Objectively assessed, the parties’ conduct showed a tenancy at will after the old lease expired, not a periodic tenancy. The old lease’s exclusion from 1954 Act protection, the holding-over wording in rent demands, the lack of evidence that either party wanted a protected business tenancy, and the wider statutory context meant this was not a simple “rent paid, therefore periodic tenancy” case.
That conclusion meant the operators could invoke Part 4. The Tribunal also held that the two notices, sent together with one draft joint agreement, were a valid joint notice in substance. Their joint occupation was to be disregarded when identifying the relevant occupier. The notices remained in Ofcom’s prescribed form despite accidental deletion of two ADR sentences, because the same information appeared twice elsewhere in the notices. The reference was remitted to proceed before the First-tier Tribunal.
Key Takeaways
- Payment of rent after lease expiry does not by itself establish a periodic tenancy; all surrounding circumstances determine the parties’ objective intention.
- Operators holding over as tenants at will may seek a Code agreement under Part 4.
- Separate but coordinated notices from joint operators can be valid where they are served together and seek one joint agreement.
- A trivial departure from Ofcom’s form does not invalidate a notice where no prescribed information is actually absent.
Why It Matters
The decision enables the operators to pursue a new Code agreement and potentially move onto the Code’s valuation regime, rather than remain on an expired arrangement. It also provides important guidance on characterising long-running telecoms occupation after an excluded lease has expired.
Although obiter on the point, the Tribunal further held that an operator with an unwritten periodic tenancy protected by the 1954 Act could use Part 4 to obtain a new Code agreement, distinguishing a tenant unable to initiate renewal proceedings from the fixed-term tenant considered in Compton Beauchamp.