AP Wireless II (UK) Limited v EE Limited & Anor [2026] UKUT 45 (LC)

“The owner now intends to redevelop Equipoint and as such hereby give you notice to also at bring the Agreement to an end. We now enclose by way of service upon you a statutory notice bringing your Agreement under the Electronic Communications Code to an end pursuant to paragraph 31(1) of Part 5 of Schedule 3A of the Communications Act 2003.”

“Entirely without prejudice to our contention that your letter and/or Notice cannot constitute notice pursuant to Paragraph 20 of the Code (as defined above), and entirely without prejudice to our contention that your letter and Notice are insufficient to terminate our clients’ rights to occupy the Property, we enclose, by way of service, a Counter-Notice pursuant to Paragraph 20(2) of the Code (as defined above).”

“As you may be aware, my clients have carried out adjustment works to their mast equipment which is located on the rooftop of your client's premises Equipment [Equipoint], Coventry Road, Birmingham ("the Premises"). Your client has said that, as a result of these adjustment works, it is possible for them to proceed with the proposed redevelopment, and that my clients' apparatus can remain in situ. Accordingly, I understand that it has been agreed the parties will withdraw from the Paragraph 31(1) Tribunal process.”

“My client's deadline to issue Tribunal proceedings under Paragraph 34 is approaching very shortly (15 October), and due to the new code process, it is not possible to avoid the route we are on unless we can reach an appropriate agreement. If we are not able to reach an agreement by early next week, my clients will need to protect their position. Perhaps we can discuss.”

“Accordingly, it has hereby been agreed between the parties that: 1. Equipoint withdraws its Paragraph 31 Notice. 2. EE and H3G withdraw their Paragraph 32 Counter-Notices. 3. EE, H3G and Equipoint agree to the continuation of the code agreement pursuant to Paragraph 32(2) of the Code. 4. All parties acknowledge that there is no requirement for EE and H3G to issue Tribunal proceedings under Paragraph 32(1)(b) and 34 of the Code.”

“1. In order to determine whether or not it has jurisdiction to impose a new agreement under paragraph 20 of the Code, the Tribunal will determine the following preliminary issues (the “Preliminary Issues”) in relation to the site located at Equipoint, Swan Office Centre, Coventry Road, Birmingham B24 89AD (the “Site”): (1) On what legal basis do the Claimants occupy the Site: a. as tenants under a tenancy at will; b. as periodic tenants without security of tenure under the provisions of Part II of the Landlord and Tenant Act 1954; c. as periodic tenants with security of tenure under the provisions of Part II of the Landlord and Tenant Act 1954; or, alternatively d. as licensees under a periodic licence? (2) On the true construction of the Code, are the Claimants entitled to seek the imposition of a new agreement under Part 4 of the Code in light of the current legal basis of their occupation as determined by the Tribunal? (3) If the Tribunal finds that the Claimants occupy as periodic tenants or licensees, were the Claimants prior to making the Reference first required to terminate any such periodic interest by serving a notice at common law? (4) Whether the Claimants are entitled to rely upon the paragraph 20 notices in these proceedings where the notices were served prior to the introduction of the requirement to refer to ADR and did not refer to that requirement. (5) Whether the Claimants are entitled to rely upon the Paragraph 20 notices in these proceedings where the wording of paragraph 16 differs from the wording in the notice prescribed by Ofcom?” (1) On what legal basis do the Claimants occupy the Site: a. as tenants under a tenancy at will; b. as periodic tenants without security of tenure under the provisions of Part II of the Landlord and Tenant Act 1954; c. as periodic tenants with security of tenure under the provisions of Part II of the Landlord and Tenant Act 1954; or, alternatively d. as licensees under a periodic licence? (2) On the true construction of the Code, are the Claimants entitled to seek the imposition of a new agreement under Part 4 of the Code in light of the current legal basis of their occupation as determined by the Tribunal? (3) If the Tribunal finds that the Claimants occupy as periodic tenants or licensees, were the Claimants prior to making the Reference first required to terminate any such periodic interest by serving a notice at common law? (4) Whether the Claimants are entitled to rely upon the paragraph 20 notices in these proceedings where the notices were served prior to the introduction of the requirement to refer to ADR and did not refer to that requirement. (5) Whether the Claimants are entitled to rely upon the Paragraph 20 notices in these proceedings where the wording of paragraph 16 differs from the wording in the notice prescribed by Ofcom?”

“19. In analysing the legal status of occupation I have had regard to: (i) Demand, payment and acceptance of rent and the significance, if any to be attached, to demands marked “without prejudice”. (ii) Ongoing negotiations (iii) Statutory framework either under 1954 Act, the Old Code or, after 28th December 2017, the Code. In doing so I keep firmly in mind what was said by Judge Cooke in Queens Oak Farm at paragraphs 40 and 41: “40. I bear in mind that in determining the status of the claimant after the expiry of the 1997 lease I must consider the evidence objectively; the subjective intentions of the parties are not relevant. 41. Because the evidence has to be considered objectively, I regard the evidence of witnesses of fact with some caution.” (i) Demand, payment and acceptance of rent and the significance, if any to be attached, to demands marked “without prejudice”. (ii) Ongoing negotiations (iii) Statutory framework either under 1954 Act, the Old Code or, after 28th December 2017, the Code. In doing so I keep firmly in mind what was said by Judge Cooke in Queens Oak Farm at paragraphs 40 and 41: “40. I bear in mind that in determining the status of the claimant after the expiry of the 1997 lease I must consider the evidence objectively; the subjective intentions of the parties are not relevant. 41. Because the evidence has to be considered objectively, I regard the evidence of witnesses of fact with some caution.”

“64. Mr Clark [Mr Clark] submits that a periodic tenancy arose in one of three alternate circumstances: (i) During the freehold ownership of St Francis following expiry of the Agreement (28th February 2015) until disposal to EDL on 29th March 2018 (registration 12th April 2018) (ii) Following EDL’s acquisition of the freehold on 29th March 2018 (iii) On the terms of an agreement reached between EDL and the Claimants in October 2018 (‘the 2018 Agreement’) Mr Clark confirmed that it is not the Respondent’s case that a periodic tenancy arose following the grant of its dispositionary lease on 8th March 2024.” (i) During the freehold ownership of St Francis following expiry of the Agreement (28th February 2015) until disposal to EDL on 29th March 2018 (registration 12th April 2018) (ii) Following EDL’s acquisition of the freehold on 29th March 2018 (iii) On the terms of an agreement reached between EDL and the Claimants in October 2018 (‘the 2018 Agreement’) Mr Clark confirmed that it is not the Respondent’s case that a periodic tenancy arose following the grant of its dispositionary lease on 8th March 2024.”

“66. Rent was paid throughout this period. The first two demands (for annual payments 1st March 2015 – 29th February 2016 and 1st March 2016 – 28th February 2017) were both marked “without prejudice to expiry on 28/02/2015”

“68. Rent was paid annually in advance throughout this period [AF9.4 and 19]. At the time of EDL’s acquisition of the site rent had already been paid in advance to St Francis having been demanded on 21st December 2017 [AF9.4]. The first demand by EDL was not made until 10th December 2018 [AF 19]. Accordingly no presumption of a periodic tenancy by reason of payment of rent could possibly have arisen until December 2018 at the earliest. Crucially this postdates the October 2018 Agreement. 69. On acquisition of the freehold EDL moved quickly to terminate of the expired Agreement on redevelopment grounds. To that end a paragraph 31 notice was served in April 2018 [388-9] and counter notices in July 2018 [404-409]. The overwhelming inference must be that the parties did not intend to enter into any intermediate contractual arrangement. The tenant continued to occupy on sufferance. The landlord wanted to get possession. 70. My finding is that for the period between EDL’s acquisition of the freehold and the October 2018 Agreement nothing changed. The tenancy at will with St Francis terminated as a matter of law on EDL’s acquisition of the freehold. However that does not mean that a periodic tenancy arose. By the time of the December 2018 demand both parties were operating under the (mistaken) belief that, following the coming into force of the Code, the Claimants had a code agreement that could only be terminated on redevelopment grounds. Looking objectively at all the relevant circumstances I find that the Claimants remained in occupation as tenants at will.”

“71. I repeat my findings at paragraphs 34 -42. The intention of the parties was that the legal basis of the Claimants occupation of the site would be governed by the statutory framework. As Mr Read submits that is the very antithesis of the parties intending to create a periodic tenancy (Claimants Skeleton Argument at paragraph 36). The 2018 Agreement did not create a periodic tenancy. 72. For the period following the 2018 Agreement I repeat my findings at paragraphs 43-46. The parties continued on the footing of the 2018 Agreement namely, continuation of the existing agreement subject to the protections afforded to the Claimants by the Code. No periodic tenancy arose.”

“87. Superficially Mr Read’s argument is attractive. An operator under Mr Read’s solution is not seeking to use Part 4 when it can achieve its renewal under the 1954 Act. However, such a solution would be unworkable in practice. For example what would happen if following a Part 4 reference a site provider issued a section 25 notice and subsequently a claim either for a new tenancy or termination in the County Court? The solution proposed by Mr Read would lead to a dual regime with both the Tribunal and County Court having jurisdiction over the same dispute with no mechanism to determine where priority lies. The Tribunal cannot allow its jurisdiction to be accessed based on the whim of a site provider as to whether or not it decides to issue 1954 Act notices. 88. A line has to be drawn somewhere. As Lewison LJ observed in Ashloch those holding under periodic tenancies protected by Part II of the 1954 Act who cannot take the initiative to renew their tenancies under that act may be “out in the cold”

“92. Mr Read invites me to depart from my previous decision on this point. No notice is required because imposition of an agreement under Paragraph 20 operates as a surrender and regrant and the existing agreement will be terminated by operation of law. I discussed termination by operation of law in Patricroft at paragraphs 33-35 in a slightly different context. Whilst Mr Read’s point is well made, I am bound by what was said by the Deputy Chamber president in Gravesham at [72]: “On Tower was not entitled to serve a notice under paragraph 27 to secure temporary rights because its tenancy was still continuing. Even if I am wrong about the first ground of appeal, I would nevertheless hold that On Tower was also barred from serving a valid notice under paragraph 20 while its tenancy was being continued by the 1954 Act. On that basis its Part 4 claim was commenced without a valid request under paragraph 20 having first been made and without the required time for consideration of the request by the Council having elapsed.” “On Tower was not entitled to serve a notice under paragraph 27 to secure temporary rights because its tenancy was still continuing. Even if I am wrong about the first ground of appeal, I would nevertheless hold that On Tower was also barred from serving a valid notice under paragraph 20 while its tenancy was being continued by the 1954 Act. On that basis its Part 4 claim was commenced without a valid request under paragraph 20 having first been made and without the required time for consideration of the request by the Council having elapsed.”

“(2A) The notice must also— (a) contain information about the availability of alternative dispute resolution in the event that the operator and the relevant person are unable to reach agreement, and (b) explain the possible consequences of refusing to engage in alternative dispute resolution.” (a) contain information about the availability of alternative dispute resolution in the event that the operator and the relevant person are unable to reach agreement, and (b) explain the possible consequences of refusing to engage in alternative dispute resolution.”

“98. I am grateful to Mr Read for referring me to Lipton and another v BA Cityflyer Ltd [2024] UKSC 24 an authority that was not cited in Patricroft. The amendments introduced by section 69 of 2022 Act do not require valid existing notices to be reserved. Statutory amendments are not to be construed as operating retrospectively without clear language to that effect. In Lipton Lord Lloyd-Jones said at [196]: “My starting point is the general principle of the common law that conduct and events are normally governed by the law in force at the time at which they took place. As a result, subsequent legislative changes in the law are not generally given retrospective effect. Evidence of a clear contrary intention would be required before they could be given retrospective effect, for example by disturbing accrued rights. There is a general presumption at common law that legislation is not retrospective in the sense that it alters the legal consequences of things that happened before it came into force (Chitty on Contracts, 35th ed (2023), para 1-031A; Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), sections 7.13, 7.14). This general rule reflects public expectations and notions of fairness and legal certainty.” “My starting point is the general principle of the common law that conduct and events are normally governed by the law in force at the time at which they took place. As a result, subsequent legislative changes in the law are not generally given retrospective effect. Evidence of a clear contrary intention would be required before they could be given retrospective effect, for example by disturbing accrued rights. There is a general presumption at common law that legislation is not retrospective in the sense that it alters the legal consequences of things that happened before it came into force (Chitty on Contracts, 35th ed (2023), para 1-031A; Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), sections 7.13, 7.14). This general rule reflects public expectations and notions of fairness and legal certainty.”

“99. There is a further reason why the notice is not invalid. The leading authority on the consequences of failing to comply fully with statutory procedures concerning property rights is A1 Properties (Sunderland) Limited v Tudor Studios RTM C0. Limited [2024] UKSC 27. At paragraph 61 Lord Briggs and Lord Sales set out the correct approach: “to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement” 100. The purpose of subparagraph 2A is to provide information about ADR and to explain the consequences of refusing to engage. Both parties before me are sophisticated litigators with deep pockets and access to the very best legal advice. The parties will be aware of the provisions concerning ADR in FTT Rule 4. The most recent version of the OFCOM Code of Practice published 15th April 2024 specifically deals with resolving disputes and the role of ADR (see paragraphs 1.81– 1.88). The Respondent is well aware of ADR and the costs consequences of failing to engage. I am quite satisfied that, to the extent I am wrong about retrospective invalidity, the Respondent has suffered no prejudice or injustice.” “to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement”

“108. The Claimants occupy the rooftop site at Equipoint as tenants under a tenancy at will. The Notice served under Paragraph 20 of the Code on 7th March 2023 is valid. The Tribunal has jurisdiction under Part 4 of the Code.”

“(i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

“51. In that context it can be seen that the judge’s finding that Mr Pawani was induced to enter into the contract by the statements previously made by Mrs Balasubramaniam is in fact a conclusion based partly on his finding of what she had told him about the investment product and partly on his finding that Mr Pawani did not read the documents that were sent to him a few days later and so did not realise that the nature of the investment he was being offered was different from that which he expected. Those are all findings of primary fact based on the evidence of the witnesses and as such are findings with which this court should not in my view interfere, but the conclusion that Mr Pawani was induced to sign the documents by what Mrs Balasubramaniam had previously told him is a secondary finding reached by drawing an inference from the primary facts and as such I think we have greater freedom to review it.”

“61. Nonetheless, where there is a challenge to a first instance tribunal's conclusion at the second stage, namely, whether or not there is a contract of service, I do not consider that an appellate court faces a black or white choice, as it would on a point of law such as an issue of contractual or Statutory interpretation, between holding that the tribunal was right or wrong. The first instance decision may fall within a grey area, a sort of margin of appreciation, where an appellate court may, indeed should, conclude that the tribunal reached a conclusion which it was entitled to reach and with which the appellate court should not interfere. After all, the exercise on which the tribunal is engaged in a case such as this is weighing up various factors, some of which point one way and some of which point the other, and reaching a conclusion as to the side on which the balance ultimately comes down. In my judgment, in such a case, an appellate court should not interfere unless the first instance tribunal has misdirected itself on the law (either expressly or impliedly), has taken into account a factor which it ought not to have taken into account, has failed to take into account a factor which it ought to have taken into account, or has reached a conclusion which, in light of the primary facts, it could not properly have reached.”

“86 An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge’s treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.”

“15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the Rules of the Supreme Court and should be its approach on a “review” under the Civil Procedure Rules 1998. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

“As with other consensually-based arrangements, parties frequently proceed with an arrangement whereby one person takes possession of another's land for payment without having agreed or directed their minds to one or more fundamental aspects of their transaction. In such cases the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply. Thus if one party permits another to go into possession of his land on payment of a rent of so much per week or month, failing more the inference sensibly and reasonably to be drawn is that the parties intended that there should be a weekly or monthly tenancy. Likewise, if one party permits another to remain in possession after the expiration of his tenancy. But I emphasise the qualification "failing more." Frequently there will be more. Indeed, nowadays there normally will be other material surrounding circumstances. The simple situation is unlikely to arise often, not least because of the extent to which statute has intervened in landlord-tenant relationships. Where there is more than the simple situation, the inference sensibly and reasonably to be drawn will depend upon a fair consideration of all the circumstances, of which the payment of rent on a periodical basis is only one, albeit a very important one. This is so, however large or small may be the amount of the payment.”

“23. When a party holds over after the end of the term of a lease he does so, without more, as a tenant on sufferance until his possession is consented to by the landlord. With such consent he becomes at the very least a tenant at will and his continued payment of the rent is not inconsistent with his remaining a tenant at will even though the rent reserved by the former lease was an annual rent. The payment of rent gives rise to no presumption of a periodic tenancy. Rather, the parties’ contractual intentions fall to be determined by looking objectively at all relevant circumstances. The most obvious and most significant circumstance in the present case, as in Javad v Aqil, was the fact that the parties were in negotiation for the grant of a new formal lease. In these circumstances, as in any other subject to contract negotiations, the obvious and almost overwhelming inference will be that the parties did not intend to enter into any intermediate contractual arrangement inconsistent with remaining parties to ongoing negotiations. In the landlord and tenant context that will in most cases lead to the conclusion that the occupier remained a tenant at will pending the execution of the new lease. The inference is likely to be even stronger when any periodic tenancy would carry with it statutory protection under the 1954 Act which could be terminated by the tenant agreeing to surrender or terminating the tenancy by notice to quit: see Cardiothoracic Institute v Shrewdcrest Ltd [1986] 1 WLR 368. This point is given additional force in the present case by the fact that the intended new lease, like the old lease, was to be contracted out.”

“24 The judge interpreted the reference by Nicholls LJ to the throes of negotiation as importing some requirement for a particular intensity of negotiations. But, in my view, it means no more than that the negotiations should be continuing in the sense that both parties remain of the intention that there should be a new lease on terms to be agreed. Mr Rosenthal for EHL accepted that one could have a case in which the negotiations either broke down or came to an end but the tenant was allowed to remain in occupation paying the rent and other outgoings. In time the correct inference in such a case might be that the parties had chosen to regulate their legal relationship by something other than the grant of a new long lease and a periodic tenancy might then be implied. An example of this sort of case is Walji v Mount Cook Land Limited [2002] 1 P&CR 13 where the parties reached agreement on the terms of a new lease but then did nothing further for years in terms of executing such a lease. The judge inferred that a periodic tenancy had come into existence and his decision was affirmed on appeal.”

“In the typical case where the giving and receiving of rent leaves the court to infer the existence of a periodic tenancy it is on the footing that this is the interpretation which best fills the vacuum which the parties have left. Thus, in what used to be the ordinary, case of a tenancy unaffected by statutory prolongation or protection coming to an end, and the parties giving and receiving rent but not expressly agreeing on the creation of a new tenancy, the preferred solution that the law has adopted is a periodic tenancy, on the footing that that is what the parties must have intended or be taken to have intended. Ultimately it is the intentions of the parties in all the circumstances that determines the result of the giving and acceptance of rent.”

“The tenant's interpretation of a concluded grant of a tenancy protected by the Landlord and Tenant Act 1954 seems to me less compatible with the intentions of the parties in agreeing upon tenancy subject to the approval of the court under section 38(4) and paying and accepting rent in accordance with the terms of those proposed tenancies before they came into force than is a tenancy at will. It is clearly established that it is legitimate to have regard to relevant statutory protection in determining whether or not the acceptance of rent is a factor from which a new tenancy could be created: see per Lord Scarman in Longrigg, Burrough & Trounson v. Smith (1979) 251 E.G. 847, 849. Once one takes into account the machinery of the Landlord and Tenant Act 1954 and the parties' knowledge of its operation it seems to me very clear that they did not intend to create a periodic tenancy pending the grant which both sides anticipated of a tenancy approved by the court under section 38(4). Nor do I see any compelling reason why the court should impute such an intention to them if, as is factually perfectly possible, they gave no serious thought to the legal repercussions of the payment and acceptance of rent.”

“The law on this point is well-established and is not in dispute. It is tempting to assume that when a fixed term lease expires and a tenant holds over, paying the same rent, it does so under a periodic tenancy on the same terms as those of the expired lease. But that is not necessarily the case and there is no presumption of a periodic tenancy. Rather, the parties’ conduct has to be considered objectively so as to ascertain their intentions.”

“Looking objectively at all the relevant circumstances I find that the Claimants remained in occupation as tenants at will.”

“32. The Tracker supports Mr Clark’s submissions that there were in fact no real negotiations. The reason is clear from the Tracker. “Simple maths” explains why EDL were uninterested in coming to the negotiating table when facing a “massive rent reduction”. 33. I find that there were no consensual negotiations during the period of ownership by St Francis and that the parties were not in negotiation for the grant of a new lease. The subjective intentions of the parties are not relevant. I therefore do not take into account the instructions given by the Claimants to GVA. However the Claimants wish to negotiate, once communicated to EDL on 21st November 2016, crosses the line and becomes a relevant circumstance. It is an objective fact that the Claimants wished to negotiate and were met by stonewalling from EDL. In view of the Claimants express wish to negotiate it is not possible for me to find objectively on the evidence that the parties had a common intention to enter into a periodic tenancy.”

“34. In circumstances where the owner of land and the person who occupies that land intend their relationship to be one of landlord and tenant (rather than a relationship of landowner and licensee, whether contractual or otherwise), and substantial periodic rental payments are made, the law is clear. A periodic tenancy will be found to arise by implication from those circumstances: Street v Mountford [1985] 1 AC 809 , 818E-F. In my view, the position is the same whether one is looking at occupation of a residential property or at occupation of a commercial property: London & Associated Investment Trust Plc v Calow [1986] 2 EGLR 80 ; Woodfall's Law of Landlord and Tenant, para. 1.022, fn. 4, para. 1.023.”

“Without prejudice to expiry on 28/02/2015”

“24. The addition of the words “to expiry on 28th February 2015” are significant. They go beyond unthinking use. I find that those additional words do not support the Respondent’s case that a periodic tenancy has arisen. 25. In 2017 St Francis changed agents and instructed Stephens Mc Bride (‘SMB’). SMB simply adopt “rent w/o prejudice”

“51. With regard to the wording on the invoices, neither party was able to produce any invoices prior to May 2019, and as the managing agents had changed in the intervening period, there was no evidence as to what may have been detailed on such invoices. The Tribunal found the inclusion of the words “LEASE EXPIRED, HOLDING OVER” and/or “WITHOUT PREJUDICE LEASE OUTSTANDING RENT REVIEW” and “WITHOUT PREJUDICE LEASE EXPIRED”, on invoices issued after 26 November 2018 to be of little assistance in knowing what wording may have been detailed in the previous invoices. 52. In addition, the Tribunal found the inclusion of such wording, which followed the Claimants’ email of 26 November 2018 and which did not mention what the Respondent considered the Claimants’ present position to be, could have been used without thinking, as referred to by Judge Cooke in Arqiva. There was no evidence before the Tribunal that such wording had been used after careful consideration of the current position between the parties.”

“51. It is important to be clear about what protection the Claimants had under both the Old Code and the Code. Under the Old Code following expiry of the Agreement the Claimants no longer had an agreement in writing conferring rights for the statutory purposes under Paragraph 2. What they did have was protection under Paragraph 21 when faced with an application for removal of their electronic communications apparatus and the ability to apply for conferral of new rights under Paragraph 5. 52. The Code came into force on 28th December 2017. The Claimants had protection against removal of ECA under Paragraph 40(8), pending determination of a Paragraph 20(3) application for the imposition of a new agreement. In addition the Claimants could apply for temporary code rights under Paragraph 27(1)(c). However, the Claimants did not have a code agreement. 53. The protections enjoyed by the Claimants are therefore essentially defensive in nature. Nevertheless those protections are substantial. I am satisfied that the conduct of the parties post expiry of the Agreement is referrable to the statutory protections afforded to the Claimants by the Old Code and the Code. I am careful in my treatment of the 2018 Agreement because the views of the parties are subjective and mistaken as to the existence of a code agreement. Nevertheless the 2018 Agreement is evidence before me that the parties regarded their relationship as being governed by the Code. The absence of any reference whatsoever in correspondence or dealings between the parties to the 1954 Act and/or a periodic tenancy is also a relevant circumstance. Considering all the circumstances of the case, including the annual rental payments, I find that the parties had not reached an agreement for a periodic tenancy.”

“Ormrod L.J.'s statement of the relevant question does not differ from what I have sought to set out above. The thrust of his trenchant observation, that the authorities make it clear that the "presumption is unsound and no longer holds," was, if I understand him aright, that the circumstances in which the presumption will operate will seldom, if ever, arise in present day conditions. Whether the correct view is that, having regard to the statutory controls, the so-called "old common law presumption" no longer exists, or is that the cases in which it will operate in practice are very few and far between, seems to me to be a peculiarly arid issue on which it is not necessary to express an opinion. At the end of the day it will always be for him who asserts he enjoys an interest in another's land to make good his claim.”

“49. The 1954 Act has some disadvantages for both sides. St Francis (aka Corbally) is, as its full name suggests a property investment business. EDL is a developments business. St. Francis owned the property for around 3 years, from 2015 to 2018. It realised its investment and sold to EDL who redeveloped a 60’s office block into 247 apartments. One can readily appreciate why, from a landlord’s point of view, the Agreement was contracted out of 1954 Act protection. A landlord would not want any investment potential/redevelopment fettered by 1954 Act control. The operators who entered into the Agreement were content to contract out of 1954 Act regime. 50. It is clear that when negotiating the Agreement the original contracting parties had taken care to contract out of the protections of the 1954 Act. It seems surprising that the parties would subsequently acquiesce to a periodic tenancy which would be protected. A Tribunal will require some persuasive evidence to find that parties to a contracted out agreement subsequently agreed to 1954 Act protections after expiry of that agreement. As was said by Nicholls LJ application of the common law presumption where statutory control exists will be ‘few and far between’.”

“53. The protections enjoyed by the Claimants are therefore essentially defensive in nature. Nevertheless those protections are substantial. I am satisfied that the conduct of the parties post expiry of the Agreement is referrable to the statutory protections afforded to the Claimants by the Old Code and the Code. I am careful in my treatment of the 2018 Agreement because the views of the parties are subjective and mistaken as to the existence of a code agreement. Nevertheless the 2018 Agreement is evidence before me that the parties regarded their relationship as being governed by the Code. The absence of any reference whatsoever in correspondence or dealings between the parties to the 1954 Act and/or a periodic tenancy is also a relevant circumstance. Considering all the circumstances of the case, including the annual rental payments, I find that the parties had not reached an agreement for a periodic tenancy.”

“31 In short, in my judgment the points that (i) the Walji brothers had been in occupation and had been paying the rent for some time, (ii) in May 1995 Romula Ltd were told that Fads Ltd (the tenant under the Underlease) no longer existed, (iii) with that knowledge and on that basis Romula Ltd permitted the Walji brothers to remain in occupation and accepted rent from them, (iv) the terms of the proposed new underlease to the Walji brothers were agreed subject to contract or lease, (v) there were no continuing negotiations and neither side pressed for the grant of the lease and (vi) there is no indication that Romula Ltd were concerned (as would often be the case where a landlord lets someone into possession during negotiations for a lease) that the Walji brothers should not be tenants with statutory protection, lead to and support the conclusion reached by the judge that, applying the underlying principle confirmed and identified in Javad v. Mohammed Aqil, the claimants have a periodic tenancy of the Shop Premises.”

“68. Rent was paid annually in advance throughout this period [AF9.4 and 19]. At the time of EDL’s acquisition of the site rent had already been paid in advance to St Francis having been demanded on 21st December 2017 [AF9.4]. The first demand by EDL was not made until 10th December 2018 [AF 19]. Accordingly no presumption of a periodic tenancy by reason of payment of rent could possibly have arisen until December 2018 at the earliest. Crucially this postdates the October 2018 Agreement. 69. On acquisition of the freehold EDL moved quickly to terminate of the expired Agreement on redevelopment grounds. To that end a paragraph 31 notice was served in April 2018 [388-9] and counter notices in July 2018 [404-409]. The overwhelming inference must be that the parties did not intend to enter into any intermediate contractual arrangement. The tenant continued to occupy on sufferance. The landlord wanted to get possession. 70. My finding is that for the period between EDL’s acquisition of the freehold and the October 2018 Agreement nothing changed. The tenancy at will with St Francis terminated as a matter of law on EDL’s acquisition of the freehold. However that does not mean that a periodic tenancy arose. By the time of the December 2018 demand both parties were operating under the (mistaken) belief that, following the coming into force of the Code, the Claimants had a code agreement that could only be terminated on redevelopment grounds. Looking objectively at all the relevant circumstances I find that the Claimants remained in occupation as tenants at will.”

“71. I repeat my findings at paragraphs 34 -42. The intention of the parties was that the legal basis of the Claimants occupation of the site would be governed by the statutory framework. As Mr Read submits that is the very antithesis of the parties intending to create a periodic tenancy (Claimants Skeleton Argument at paragraph 36). The 2018 Agreement did not create a periodic tenancy. 72. For the period following the 2018 Agreement I repeat my findings at paragraphs 43-46. The parties continued on the footing of the 2018 Agreement namely, continuation of the existing agreement subject to the protections afforded to the Claimants by the Code. No periodic tenancy arose.”

“46. My finding is that post the 2018 Agreement, until service of the Paragraph 20 Notice the subject of these proceedings, the legal basis of the Claimants occupation of the site continued on the footing agreed in the 2018 Agreement namely, continuation of the existing agreement. No periodic tenancy arose.”

“40. My finding is that the 2018 Agreement did not change the status quo ante. What was in existence beforehand continued. The parties believed that the Claimants had a Code agreement. In fact what the Claimants had was no more than rights under Part 6 of the Code to protect their ECA in response to a removal application. I find that the 2018 Agreement merely recognised the Claimants continuing occupation and their protection under the Code (albeit that the parties were mistaken as to the extent of that protection). Nowhere in the 2018 Agreement does it suggest that the Claimants were already in occupation under a periodic tenancy. Certainly no steps were taken by EDL to terminate the periodic tenancy it is now said by the Respondent to have existed. The intention of the parties, looked at objectively, was to deal with the situation in which they found themselves by way of continuation of their existing agreement governed by the terms set out in the expired Agreement.”

“167 I find the reasoning of the Upper Tribunal and the Court of Appeal in Ashloch as to why an operator with a subsisting agreement protected under the 1954 Act should not have the option of renewing the rights under Part 4 of the new Code to be persuasive. The intention of the Government, following the recommendation of the Law Commission, was that such an operator should not get the retrospective benefit of the new Code, in particular the substantial benefit of the no-scheme valuation of the rights. 168 There is a difficulty here that, on the basis of the decision in On Tower, Cornerstone may not in fact have a subsisting agreement precluded by paragraph 6 of the transitional provisions from the benefit of Part 5 of the new Code because its agreement is not in writing. The absence of writing does not, however, affect its continued ability to apply to the County Court to renew its tenancy under Part 2 of the 1954 Act. My understanding is that that option was and is open to Cornerstone in respect of this site. I do not consider that the fact that Part 5 of the new Code may not be available to Cornerstone for the reason that its agreement is not in writing should mean that it is in a better position than a tenant whose agreement is in writing but who cannot rely on Part 5 because of paragraph 6 of the transitional provisions. Cornerstone must therefore use its rights under Part 2 of the 1954 Act to renew its lease; that lease will then be caught by section 43(4) of the 1954 Act so that when that lease expires, Part 5 will be available.”

“25. Mr Kitson before me submits that the position is different in respect of any periodic tenancies which may have arisen following the expiry of a contracted out 1954 Act tenancy. In doing so Mr Kitson seeks to distinguish the position in Ashloch which [w]as not contracted [out]. Periodic tenancies arising on the expiry of a contracted out 1954 Act tenancy are not subsisting agreements because they are not in writing (see Queen’s Oak at [84]) and therefore Part 5 is not available. A periodic tenancy is protected under Part 2 of the 1954 Act and has security of tenure. However the right to renew such a tenancy is qualified. A request for a new tenancy can only be made under section 26(1) where the current tenancy is a tenancy granted for a term of years certain exceeding one year. Accordingly a periodic tenant can only apply to the court for an order for the grant of a new tenancy if the landlord has given notice under section 25 to terminate the tenancy (see section 24(1)(a)). Mr Kitson therefore argues that as the Claimant, under the assumed protected periodic tenancy, cannot initiate renewal under the 1954 Act and cannot access Part 5 it must, a fortiori, be able to access Part 4. A “black hole” is, Mr Kitson submits, contrary to the policy of the Code. This follows what was said by Lewison LJ in Ashloch in the Court of Appeal at [105]: “The effect of the definition of “subsisting agreement” in the transitional provisions may have left some operators out in the cold: notably those who occupy under tenancies at will not recorded in writing; and possibly those holding under periodic tenancies protected by Pt II of the Landlord and Tenant Act 1954 who cannot take the initiative to renew their tenancies under that Act.” “The effect of the definition of “subsisting agreement” in the transitional provisions may have left some operators out in the cold: notably those who occupy under tenancies at will not recorded in writing; and possibly those holding under periodic tenancies protected by Pt II of the Landlord and Tenant Act 1954 who cannot take the initiative to renew their tenancies under that Act.”

“27. In addition I am not persuaded that the Claimant in such circumstances is “left out in the cold”

“87. Superficially Mr Read’s argument is attractive. An operator under Mr Read’s solution is not seeking to use Part 4 when it can achieve its renewal under the 1954 Act. However, such a solution would be unworkable in practice. For example what would happen if following a Part 4 reference a site provider issued a section 25 notice and subsequently a claim either for a new tenancy or termination in the County Court? The solution proposed by Mr Read would lead to a dual regime with both the Tribunal and County Court having jurisdiction over the same dispute with no mechanism to determine where priority lies. The Tribunal cannot allow its jurisdiction to be accessed based on the whim of a site provider as to whether or not it decides to issue 1954 Act notices. 88. A line has to be drawn somewhere. As Lewison LJ observed in Ashloch those holding under periodic tenancies protected by Part II of the 1954 Act who cannot take the initiative to renew their tenancies under that act may be “out in the cold”

“45. I am therefore satisfied that the proper interpretation of the Code requires that an operator which has exhausted its rights of renewal under the 1954 Act is prevented from making a further application for rights under Part 4 of the Code. In my judgment the FTT did not have jurisdiction to entertain On Tower’s reference under Part 4 and should have struck it out under rule 9(2)(a) of the FTT Rules.”

“72. I have already rejected Mr Radley-Gardner’s analysis of the rights of an operator which has lost its opportunity to renew under the 1954 Act. It is clear that, on the view I take of the status of the proceedings after the failure to serve the claim form in time, On Tower was not entitled to serve a notice under paragraph 27 to secure temporary rights because its tenancy was still continuing. Even if I am wrong about the first ground of appeal, I would nevertheless hold that On Tower was also barred from serving a valid notice under paragraph 20 while its tenancy was being continued by the 1954 Act. On that basis its Part 4 claim was commenced without a valid request under paragraph 20 having first been made and without the required time for consideration of the request by the Council having elapsed. That is a further, free standing ground for dismissing the reference under rule 9(3)(a) of the FTT’s Rules.”

“31. In light of my decision that periodic tenants with 1954 Act protection are not able to access Part 4 it is not strictly necessary for me to consider the position further in respect of such tenants. However in Gravesham the Claimant was barred from serving a valid notice under paragraph 20 whilst its tenancy was being continued by the 1954 Act [72]. Under such circumstances I find that a periodic tenant cannot access Part 4 without first having given notice to terminate the periodic tenancy and such notice having expired.”

“In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates when the tenant is a party to a transaction that is inconsistent with the continuation of his tenancy, but in my judgment the conduct of the tenant must unequivocally amount to an acceptance that the tenancy has been terminated. There must be either relinquishment of possession and its acceptance by the landlord or other conduct consistent only with the cesser of the tenancy, and the circumstances must be such as to render it inequitable for the tenant to dispute that the tenancy has ceased.”

“82. We agree with Mr Seitler that rights may be conferred on an operator who is already in occupation, and that in such a case the person who confers the rights (voluntarily or by compulsion) may not have been in occupation when the notice was given to them under paragraph 20(2). But in such a case there are no third-party rights in play and therefore no obstacle to the grant of new rights in substitution for those which already exist. The effect of the same parties entering into a new agreement on different terms will be that the previous agreement will be terminated by operation of law. Where the agreement is consensual, under Part 2, the operator will not be able to suggest that the site provider was not the occupier at the moment the agreement conferring the rights was entered into since otherwise paragraph 9 would prevent the agreement having effect at all. The position is the same under Part 4. The Tribunal can compel the grant of new rights by a site owner to an operator which is itself in occupation but it cannot compel the grant of rights by a person who is not in occupation to an operator who is not in occupation.”

“78. Mr Seitler (and Arqiva) relied on what had been said by the Tribunal in its decision in Compton Beauchamp at [82], agreeing with his submission that rights may be conferred by an agreement under Part 4 on an operator who is already in occupation. But it is important to read that paragraph in context. The point which Mr Seitler had then been making, and which the Tribunal accepted, was identified at [81], and concerned applications under paragraphs 26 or 27. Moreover, to the extent that paragraph [82] might appear to differ from the analysis of the Court of Appeal, it is because it overlooked the importance of paragraph 34(8) and its general application to agreements between operators and site providers.”

“96. The Respondent’s case is that service of a valid notice is a precondition, under Paragraph 20(3) for the making of a reference to the Tribunal. Subparagraph 2A requires that a valid notice must contain information about ADR. The reference before me was made under Paragraph 20 on 6th August 2014 [1-13] [AF30]. It is common ground that the Notice relied on was served on 7th March 2023 [235-283] [AF 22] and did not contain information about ADR.”

“65. The case advanced by Mr Watkin at the hearing, as predicated by Preliminary issue (v), is whether the Claimant can rely on those Notices. Mr Watkin submits that, absent any transitional provisions in the 2022 Act, the Notices were no longer valid as at the date that the references were made. Mr Watkin submits that the Claimant has “sidestepped” the rights of the Respondent to have any dispute resolved by ADR. The Claimant could and should have served a fresh Notice containing information about ADR and the consequences of refusing to engage. The delay from the perspective of the Claimant would have been only the requirement to wait for the period of 28 days to elapse before a reference could be made. 66 I do not accept Mr Watkin’s submission. The Notices were valid when served. They did not become invalid on 7th November 2023. There is no concept of retrospective invalidity. Accordingly references could validly be made under Paragraph 20 after 7th November 2023 reliant on valid Notices served prior to that date.”

“196 My starting point is the general principle of the common law that conduct and events are normally governed by the law in force at the time at which they took place. As a result, subsequent legislative changes in the law are not generally given retrospective effect. Evidence of a clear contrary intention would be required before they could be given retrospective effect, for example by disturbing accrued rights. There is a general presumption at common law that legislation is not retrospective in the sense that it alters the legal consequences of things that happened before it came into force (Chitty on Contracts, 35th ed (2023), para 1-031A; Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), sections 7.13, 7.14). This general rule reflects public expectations and notions of fairness and legal certainty.”

“101. The Notice in the present reference was served on 7th March 2023. It did not become invalid on 7th November 2023. Accordingly a reference could validly be made under Paragraph 20 on 6th August 2024 reliant on the Notice served on 7th March 2023.”

“58 In my judgment the argument is unsound in principle and on authority. As a matter of principle, if the decision to issue a notice to quit was not unlawful at the time of the service of the notice, the notice was valid. I cannot see a principled basis on which a notice valid at the time of service could be retrospectively invalidated by reason of later developments.”

“100.The purpose of subparagraph 2A is to provide information about ADR and to explain the consequences of refusing to engage. Both parties before me are sophisticated litigators with deep pockets and access to the very best legal advice. The parties will be aware of the provisions concerning ADR in FTT Rule 4. The most recent version of the OFCOM Code of Practice published 15th April 2024 specifically deals with resolving disputes and the role of ADR (see paragraphs 1.81 – 1.88). The Respondent is well aware of ADR and the costs consequences of failing to engage. I am quite satisfied that, to the extent I am wrong about retrospective invalidity, the Respondent has suffered no prejudice or injustice.”

“68 In our view the correct approach in a case where there is no express statement of the consequences of non-compliance with a statutory requirement is first to look carefully at the whole of the structure within which the requirement arises and ask what consequence of non-compliance best fits the structure as a whole. Here the provisions of sections 78 and 79 call for a two stage process of notification of the RTM proposal to persons with an interest in the building to which the right to manage is (if validly exercised) to be applied.”

“88 Notices given by operators (1) A notice given under this code by an operator must— (a) explain the effect of the notice, (b) explain which provisions of this code are relevant to the notice, and (c) explain the steps that may be taken by the recipient in respect of the notice. (2) If OFCOM have prescribed the form of a notice which may or must be given by an operator under a provision of this code, a notice given by an operator under that provision must be in that form. (3) A notice which does not comply with this paragraph is not a valid notice for the purposes of this code. (4) Sub-paragraph (3) does not prevent the person to whom the notice is given from relying on the notice if the person chooses to do so. (5) In any proceedings under this code a certificate issued by OFCOM stating that a particular form of notice has been prescribed by them as mentioned in this paragraph is conclusive evidence of that fact.” (1) A notice given under this code by an operator must— (a) explain the effect of the notice, (b) explain which provisions of this code are relevant to the notice, and (c) explain the steps that may be taken by the recipient in respect of the notice. (2) If OFCOM have prescribed the form of a notice which may or must be given by an operator under a provision of this code, a notice given by an operator under that provision must be in that form. (3) A notice which does not comply with this paragraph is not a valid notice for the purposes of this code. (4) Sub-paragraph (3) does not prevent the person to whom the notice is given from relying on the notice if the person chooses to do so. (5) In any proceedings under this code a certificate issued by OFCOM stating that a particular form of notice has been prescribed by them as mentioned in this paragraph is conclusive evidence of that fact.”

“ALTERNATIVE DISPUTE RESOLUTION 13A. Before applying for an order under paragraph 20(4) [and paragraph 27(2)] of the Code, we must, if it is reasonably practicable to do so, consider the use of one or more alternative dispute resolution procedures to reach agreement with you. 13B. Either you or we may at any time give the other a notice in writing stating that you or we (as applicable) wish to engage in alternative dispute resolution with the other in relation to the agreement we are seeking under this notice. If either you or we unreasonably refuse to engage in such alternative dispute resolution before an application is made to the court, the court must have regard to this when deciding on the appropriate costs order or, in Scotland, expenses. 13C. For more information on the availability of alternative dispute resolution, please see the supplementary information at the back of this notice.”

“77. At the risk of stating the obvious, it is worth spelling out why the distinction drawn in A1 Properties must in my judgment be correct. When construing a statutory scheme, the task of the court or tribunal is to seek the meaning of the words used by Parliament in accordance with the principles of interpretation laid down in the case law. Those principles were authoritatively restated by the Supreme Court in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255 at [29] to [31] per Lord Hodge (with whom Lord Briggs, Lord Stephens, Lady Rose JJSC and Lady Arden agreed). That guidance emphasises that “the words which Parliament has chosen to enact as an expression of the purpose of the legislation” are “the primary source by which meaning is ascertained” ([29]), and although external aids to interpretation play a secondary role, “none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity” [30]. Further, the “intention of Parliament” is an objective concept, not subjective, and “is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used” ([31], citing the speech of Lord Nicholls in the Spath Holme case [2001] 2 AC 349, 396). It follows that where the language used by Parliament to state the consequence of non-compliance with a procedural requirement is clear, unambiguous and does not produce absurdity, it is the duty of the court or tribunal to interpret and apply that language accordingly. That is what the rule of law requires, and the court or tribunal would be overstepping its constitutional boundaries if it attempted to substitute for the language of Parliament an interpretation which in its view would produce a more reasonable result on the facts of the individual case before it. 78. By the same token, it is only where Parliament has not expressly stated the consequences of non-compliance that there can be any room for a Soneji analysis designed to determine objectively what intention should be imputed to Parliament to fill the gap left by its silence on the point.”