The Upper Tribunal (Lands Chamber) found the First-tier Tribunal's analysis of the status of mobile operators who stayed on after a rooftop lease expired was wrong in law, affecting site owners and operators.
Key facts
- Who: Site owners and mobile network operators whose lease of a telecoms site has expired but who remain in occupation
- From: 7 August 2026
- Source: EE Limited & Anor v The Mayor and Burgesses of the London Borough of Wandsworth [2026] UKUT 299 (LC)
The Upper Tribunal (Lands Chamber) gave its decision on 7 August 2026 in [2026] UKUT 299 (LC), an appeal from the First-tier Tribunal (FTT). Upper Tribunal Judge Elizabeth Cooke heard the case.
Background
The case concerns a site on the roof of Castlemaine House, London SW11. The London Borough of Wandsworth is the freeholder. The appellants, EE Limited and Hutchison 3G UK Limited, are mobile network operators.
They held a lease of the site, made in 2004 for a term of 10 years from 18 February 2003. It was protected under the old telecoms code and was "contracted out" of the Landlord and Tenant Act 1954, so the 1954 Act did not continue it. The contractual term expired in February 2013, but the operators remained in occupation and kept paying rent, at a higher rate than before. From 2019, the council's rent invoices carried wording such as "lease expired, holding over".
In 2024 the operators served notices under the Electronic Communications Code (the Code) and in November 2024 a reference reached the FTT.
The question
The FTT decided that the operators were periodic tenants with security of tenure under the 1954 Act, not tenants at will. It followed, the FTT held, that they could not seek a new agreement under Part 4 of the Code. It also held their notices invalid, and invalid in any event because they were not in the form prescribed by Ofcom. The operators appealed all four points.
The first issue was the operators' status after the lease ended. It matters because it is uncontroversial that a tenant at will can seek to have a new Code agreement imposed on the site provider by the FTT.
The decision and reasoning
On the first issue, the judge agreed with the operators that the FTT's analysis was wrong in law.
She held that this was not a case of occupation and rent "without more". The agreed facts all counted as "more": the requests for consent to works, the attempt to start negotiations, the caveats on rent demands, the contracted-out lease and the old Code.
The judge considered the contracting-out highly significant. The parties had not wanted 1954 Act protection for the old lease, and there was no evidence they had changed their minds. A periodic tenancy would have taken them into that regime, which was by itself a reason to infer a tenancy at will. She treated payment of rent as neutral and regarded the consent requests as neutral too. She said wording such as "holding over" and "lease outstanding" is apt to describe a tenancy at will but not a periodic tenancy.
What this means for site owners and operators
- Whether someone who stays on after a lease ends is a periodic tenant or a tenant at will depends on all the circumstances viewed objectively, not on rent payments alone.
- Whether a lease was contracted out of the 1954 Act, and the wording a landlord uses on rent demands, can weigh in that assessment.
- The status matters because it bears on whether an operator can seek a new agreement under the Code.
- Anyone in a similar position may wish to get legal advice on their own documents and correspondence.
Sources
- EE Limited & Anor v The Mayor and Burgesses of the London Borough of Wandsworth [2026] UKUT 299 (LC), Upper Tribunal (Lands Chamber), 7 August 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/299