Upper and First Tier Tribunal

There have been three  decisions of the Upper and First Tier Tribunal which we have been involved with recently and which bring some good news for Site Providers. As most people like a short read, I have very briefly sought to extract some key take aways, as follows:

AP Wireless v On Tower UK Limited [2024] UKUT 263 (LC) (Lubbards Lodge & Sandbach appeal)

The case was an appeal heard by Edwin Johnson J, the President of the Upper Tribunal with David Holland KC and Wayne Clark acting for our client. The key take away, is that going forward, the Old Code greenfield agreements are much more likely to be held to be leases rather than licences. This is important as this will mean many more cases fall into the Landlord and Tenant Act 1954 for renewal rather than the Code. Please read the judgment as it gave a thorough analysis of the terms of the agreement and there is also a discussion on the impact of an uncertain term which despite the grant of exclusive possession can still lead to the agreement being a licence.  

The Decision can be viewed here.

On Tower UK Limited v AP Wireless & Others [2024] (Ewefields Farm case)

This case was before Judge Jackson in the First Tier Tribunal and involved 14 greenfield sites.  The case dealt with a significant number of terms of the Code agreement as well as consideration. Toby Watkin KC and Wayne Clark acted for AP Wireless and were jointly instructed by Freeths and Eversheds. Although this case contains a large number of points to consider, for my part, there were three key takeaways for Site Providers:

The starting point for rents was £1,750 but rising to £2,500 in some cases.

A compensation clause was ordered that can be inserted into agreements that will preserve the right to compensation without having to have the agreement imposed. This was a much sought after term by Site Providers as certain Operators either refuse to have compensation clauses or seek to add sgnificant restrictions to what is an important Code protection for Site Providers.  

Operators have a Code right to share the electronic apparatus with other operators but not the premises. This is really significant win for Site Providers as it provides a welcome limit to what can be installed at a property. Obviously, Site Providers can offer to grant wider rights to the Operator but presumably at a fair price.

There is lots to unpack in this case and I would invite you to read the decision as I have cherry picked the three things I really liked about it.

The Decision can be viewed here.

On Tower UK Limited (and another) v AP Wireless (UK) Ltd (Particroft et al)

This case, before Judge Jackson in the First Tier Tribunal with Toby Watkin KC and Wayne Clark acting for AP Wireless, dealt with a number of preliminary issues but the two key take aways for Site Providers are:

If the Operator is occupying pursuant to a periodic lease protected by the Landlord and Tenant Act 1954 (LTA 1954) then they are not able to use Part 4 or 5 of the Code to instigate a renewal. Furthermore, because they are unable to serve notice pursuant to section 26 of the LTA 1954, they must wait for the Landlord to instigate the renewal process by service of a notice pursuant to section 25 of the LTA 1954.  This is important as the landlord preserves their LTA 1954 rights including the improved rights of termination and can seek renewal through the LTA 1954 rather than find the position unilaterally changed by the Operator pursuant to the Code.   

Where the Operator seeks to rely on an old notice (in this case the notice was 4 years old) then this is likely to be an abuse of process and the notice will be held to be invalid.  Although, due to the special circumstances in this case, Judge Jackson did not find that there was an abuse in this case.

The Decision can be viewed here.