Case update
There has been a spate of telecoms related judgements handed down in recent months, which have been decided in favour of operators:
February 2026
In On Tower UK Limited v AP Wireless II (UK) Limited the Court of Appeal upheld the decisions of the First Tier and Upper Tribunals that an operator need only have the benefit of an agreement to which the Electronic Communications Code applies, to be considered a party to it. The operator in question had been assigned the benefit of a Code agreement, but in line with general contract law could not be assigned the burden. The site provider argued that the lack of a direct covenant with the site provider meant that the operator was not party to the Code agreement for the purpose of paragraph 33 of the Code and could therefore not trigger the process of modifying or renewing an existing Code agreement. The Court of Appeal dismissed this argument and accepted the operator's argument that the benefit of an agreement was sufficient to engage the relevant Code provisions. In its judgment the Court confirmed that the purpose of the Code was to make it easier for communications providers to deploy and maintain their infrastructure and this decision served those aims.
March 2026
In EE and Hutchison 3G UK Ltd v London Borough of Sutton, which concerned Cheam Leisure Centre, the First Tier Tribunal grappled with the question of who the "occupier" of a property is in circumstances where the superior landlord has granted a headlease. The operators occupied a site on the roof of the leisure centre and served notice under the Electronic Communications Code on Sutton BC seeking to renew their agreement. Sutton BC brought a jurisdictional challenge on the basis that it had parted with possession (and therefore occupation) of the roof, as it had granted a lease of the leisure centre to a management company. By reference to previous decisions, which had established that occupation was a question of fact and not law, the Tribunal held that the lease in question was drafted so that the local authority retained control and management of the roof, and as such Sutton BC remained the occupier for the purpose of the Code.
April 2026
In the latest round of On Tower UK Limited -v- (1) AP Wireless II (UK) Limited and (2) Icon Tower Infrastructure Limited, which concerns Queen's Oak Farm, a decision was handed down on 1 April 2026 which determined two issues: firstly, the timing of Icon's (the site provider) break right; and secondly, whether On Tower's mast should be subject to a height restriction.
- On the first issue, after carrying out a balancing exercise, the First-Tier Tribunal decided that On Tower should be provided with a reasonable period of security of occupation and that an immediate or second anniversary break (as Icon sought) would "render the process of renewal… entirely pointless". A minimum term of five years (as On Tower proposed) was imposed after finding that On Tower's business needs outweighed any loss or damage caused to Icon.
- On the second issue, Icon sought to restrict the height of the mast to its current height until at least the earliest break date. The Tribunal decided that no such restriction should be imposed as it would limit On Tower's ability to meet future business needs and that Icon's concern about the absence of such a restriction causing a loss of future commercial opportunities was speculative.
Change to valuation mechanism
Section 61 to 64 of the snappily titled Product Security and Telecommunications Infrastructure Act 2022 came into force on 7 April 2026. These provisions aligned the valuation mechanism used in renewals of telecoms leases under the Landlord and Tenant Act 1954 with the "no network" assumption of the Electronic Communications Code. The "no network" mechanism disregards the use of the site for telecommunications purposes, meaning that for the average rooftop, where there is often no valuable alternative use, rents achieved are much lower than those agreed under the open market valuation mechanism of the 1954 Act. Even for a city centre site, rents rarely significantly exceed £5,000 a year, and even though landlords may still be entitled to compensation for certain expenses, this is not going to bridge the gap to what would have been payable prior to this change.