Tinsel, Towers and Telecoms: The Winter FTT Round-Up: Part 1

‘Tis the season… to take care with notices

EE Limited and Hutchison 3G UK Limited (“EE & H3G”) v London Borough of Wandsworth (“Wandsworth”) (“Castlemaine House”)

This case, which involved a renewal of Code rights in respect of Castlemaine House, Culvert Road, Battersea, saw an operator attempting to renew its rights under the Code having previously enjoyed occupation under an agreement which had been contracted out of the Landlord and Tenant Act 1954 (the “LTA”), and which expired in 2013.

The question for the tribunal was: has the correct notice been served?

Here, the underlying query was whether EE & H3G were:

• tenants under a tenancy at will;
• periodic tenants without security of tenure under the LTA; or
• LTA-protected periodic tenants.

EE & H3G argued that they were tenants at will and that, as such, their notice served under paragraph 20 of the Code was valid. Conversely, Wandsworth argued principally that the operators were protected periodic tenants and that, accordingly, they needed to seek renewal under the LTA.

The main observations were as follows:

• there had been no negotiations at the expiry of the agreement
• the agreement expired in 2013, and it was not until December 2018 that an offer letter for a Code agreement under the new Code was sent to Wandsworth
• EE & H3G had otherwise continued for a substantial period of time to pay the rent under the expired agreement as normal
• from May 2019, invoices sent from Wandsworth were headed ‘without prejudice’ and stating that the agreement had expired and that EE & H3G were holding over.

It was held that EE & H3G were periodic tenants and, as such, the claim must be struck out and EE & H3G would need to serve new notice under the LTA if they wished to renew their Code rights.

The main takeaways are as follows:

• lack of negotiation at the end of an agreement appears to remain the most decisive factor in avoiding periodic tenancy status
• albeit paying the rent as normal is not exclusively indicative of a periodic tenancy, it may become more so where there is a lack of negotiation
• without evidence of the wording used on the pre-2019 invoices or proof that the 2019 wording was the product of careful consideration between the parties on the occupation status of EE & H3G, the 2019 wording was not to be given material consideration.

Further observations of note:

Even if EE & H3G were correct in serving notice under paragraph 20 of the Code, they had still erred in that their notice had missed out some of the wording from the Ofcom-prescribed template. The Mannai principle is irrelevant to Code notices and so too therefore is the question of whether a site provider is prejudiced by any deviation from such template. Strict use of the Ofcom-prescribed wording is essential for validity.

Caution should be taken in referring to only one operator in a notice where there are two named under the same agreement given, technically, as per the decision in Compton Beauchamp, this could mean that an operator should then also be serving notice on the other operator on the site as occupier of the land for the time being. Accordingly, it is better for an operator to serve notices in joint names where there are two operators in occupation under an existing expired agreement.