Which notice? Choose wisely

EE Limited & Hutchison 3G UK Limited (“EE & H3G”) v Clocktower Investments Limited (the “landowner”)

In this case, EE & H3G had equipment installed on the landowner’s land pursuant to a 2004 lease, which expired in 2024. Post-expiry, EE & H3G sought a renewal.

This was a slightly unusual scenario in that even though the lease had envisaged that EE & H3G would be demised an area on the ground as well as rights to install on a clocktower, the ground-based station never materialised such that in practice EE & H3G were never in occupation of this area, albeit other antenna and cabinets were in situ.

Even though the lease was not contracted out of the Landlord and Tenant Act 1954 (“LTA”), EE & H3G still served a renewal notice under the Code.

The landowner questioned its validity, arguing that the LTA still applied to EE & H3G’s occupation and, as such, they should have served a section 26 request instead.

It was held that:

• It did not matter that the demised premises was never occupied because EE & H3G did have equipment on the ground in a similar location and they also occupied parts of the clocktower: this was enough to give them LTA protection.
• The fact that the landowner’s rights to access the clocktower remained unfettered and they retained the right to relocate the equipment thereon made no difference to this finding.
• The renewal notice was invalid and EE & H3G would instead need to serve a section 26 request.

EE & H3G v AP Wireless II (UK) Limited (“AP Wireless”) and On Tower UK Limited (“On Tower”) v AP Wireless

These cases from April and June 2025 saw the tribunal make decisions regarding the renewal notices served in respect of a converted office block in Birmingham (the first case) and in respect of Dalkeith Farm, Sandy Lodge Golf Club and Thackley Football Club (the second case).

In each situation, the tenancies were contracted out of the LTA, and they expired before December 2017, so they did not fall within the definition of ‘subsisting agreement’ as defined within the Digital Economy Act 2017. This necessitated the question of whether each of the respective operators were in occupation under a tenancy at will, or an implied periodic business tenancy with LTA protection. 

The findings:

In each situation rent was paid on a regular basis, whether that be annually or biannually, and in all four scenarios the parties had entered into negotiations for a new lease, albeit these were limited.

Irrespective of how short-lived negotiations were, the fact that they took place was enough to indicate an intention to enter into a new lease and, accordingly, to treat each of the operators as in occupation under tenancies at will. The litigation history and competitive relationship between the parties also added to the impression that there was no mutual intention between them to create periodic tenancies. In the earlier case, the tribunal commented that it would be surprising that the parties would acquiesce to a protected periodic tenancy where they had earlier taken care to contract out of the LTA.

Ultimately a Code notice is still the correct statutory notice to serve for an operator to renew rights in both tenancy at will and periodic tenancy scenarios, but a periodic tenant cannot serve a valid notice under the Code without first having given notice to terminate the periodic tenancy and such notice having expired.

The Birketts view

Scrutinising the notices served by operators can be a useful exercise to buy time in negotiating new arrangements and, sometimes, preserving old rent levels for longer.

Even if a tenant’s physical demise has never been constructed as originally envisaged, if the lease shows an edged area and there is ground-based equipment in the same rough location then this is likely to be sufficient to create LTA security of tenure and, as such, mean that any notice to either renew tenant rights or indeed terminate them must be served under this legislation rather than the Code.

When it comes to whether an arrangement is a tenancy at will or a periodic tenancy, even minimal negotiations can be enough to make it the former. These are again important considerations, not only for tenants but also landlords when working out the correct notice to serve to terminate rights. For tenants, a periodic tenancy means a hybrid of serving notice to terminate this before embarking on a Code notice for renewal; for landlords who wish to terminate, it means serving termination notices under the LTA, and not the Code.