Three significant decisions handed down in 2025 under the Electronic Communications Code (Code) have brought much-needed clarity in relation to rooftop access, operator site-sharing, assignment, renewal and termination issues. They have implications for operators, site providers, and professional advisors alike.
1. Unlimited sharing rights granted to operator
The First-tier Tribunal decision of Cellnex Connectivity Solutions Ltd v Secretary of State for Housing Communities and local government concerned Cellnex’s application to install electronic communications apparatus on the rooftop of Croydon Crown Court. The dispute centred on key terms of the proposed lease, particularly sharing rights, installation flexibility, and yielding up obligations.
Cellnex were granted unlimited sharing rights – although the tribunal acknowledged the site's sensitive nature and imposed some safeguards. Prior to the hearing, the parties agreed between themselves that the operator may use “vacant and unused areas” of the rooftop for further apparatus, subject to landlord consent (not to be unreasonably withheld). However, it seems likely that the tribunal would have granted Cellnex broader installation rights across the rooftop, rejecting the site provider’s attempt to restrict the demise to a fixed area.
2. Critically important to know whether a code agreement is a lease or licence
The status of the occupation agreement is critical information – to operators particularly. The true nature of the agreement will determine whether it is Code provisions or Landlord and Tenant Act 1954 provisions that will apply in any renewal or termination of the agreement.
In AP Wireless II (UK) Ltd v On Tower (UK) Ltd, the Court of Appeal tackled this age-old challenge of whether the agreement was a lease or a licence. The material issue was the term of the agreement: 10-year fixed, indefinite continuation and mutual rolling 12-month break option. It was held that as the term was uncertain at inception, no valid lease had been created.
For more information on this issue, please see our blog: Telecoms Code Agreements: Is it a lease or a licence?
3. Contractual and statutory compliance as a prerequisite to terminating a code agreement
The requirements of a lease break option must be strictly complied with – failing to get the break notice right will invalidate the notice and the lease will not end. The decision in On Tower UK Ltd v British Telecommunications plc demonstrates that the Code cannot be used to circumvent contractual compliance.
BT, as landlord, served a contractual break notice and a statutory notice to terminate (paragraph 31 of the Code), to end On Tower’s lease of a rooftop. However, the contractual break notice contained technical errors. On Appeal, it was held that a statutory paragraph 31 notice cannot be validly served unless the contractual break clause has been properly exercised. That was not the case here, meaning the lease could not terminate.
If you are an operator, infrastructure provider or landowner dealing with Code agreements, or you have any concerns or questions about the impact these issues may have on you or your business, please contact our Real Estate Litigation Team.
For more insights on the impact of these issues and others across the Telecoms Sector, please visit our dedicated Telecoms home hub.
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