Introduction

1.

This is an appeal about a site on the roof of Castlemaine House, London SW11, from a decision of the First-tier Tribunal in a reference under Schedule 3A to the
Communications Act 2003
, known as the Electronic Communications Code or “the Code”. The appellants are mobile network operators who held a lease (“the old lease”) of a site on the roof of Castlemaine House, of which the respondent, the London Borough of Wandsworth, is the freeholder. The old lease was protected under the statutory predecessor of the Code (“the old Code”), and it was contracted out of the
Landlord and Tenant Act 1954
. It expired on 27 February 2013 but the appellants have remained in occupation ever since. The appellants say that they have served valid notices under paragraph 20 of the Code and are entitled to seek a Code agreement under Part 4 of the Code.

2.

The FTT decided that:

a.

The appellants hold a periodic tenancy following the expiry of the old lease, with security of tenure under
the 1954 Act
, and are not tenants at will;

b.

The appellants are therefore not entitled to seek a new agreement under Part 4 of the Code;

c.

The separate paragraph 20 notices given by the appellants are not valid; and

d.

The paragraph 20 notices are in any event invalid because they are not in the form prescribed by Ofcom.

3.

The appellants appeal all four points with permission granted by the FTT. They were represented in the appeal by Mr Oliver Radley-Gardner KC, and the respondent by Mr Jonathan Wills KC; I am grateful to them both.

4.

I address the four issues in the appeal in turn after a brief summary of the facts and the relevant legal background.

The legal and factual background

5.

The Code regulates the legal relations between those who operate mobile phone networks or provide the infrastructure for the operation of those networks, and landowners on whose property the necessary equipment stands. It came into force on 28 December 2017, and the old Code was repealed at that point. Transitional provisions defined a “subsisting agreement” as “an agreement for the purposes of paragraph 2 or 3 of the existing code”; such agreements have the protection of the Code. An operator or site provider who is “a party to a Code agreement”, subject to some exceptions to be discussed below, may apply for an order under paragraph 34 of the Code. Under that paragraph the FTT may order that the existing agreement be terminated and that the parties enter a new agreement. Such a new agreement will take effect under the Code and subject to its provisions for consideration.

6.

Under the old Code the consideration for a Code agreement was a market rent; the Code introduced a new basis of consideration calculated on an assumption that is favourable to Code operators.

7.

Under the old Code an agreement might have both the protection of the old Code and the security of tenure conferred by the
Landlord and Tenant Act 1954
; but it was open to the parties to contract out of
the 1954 Act
in the usual way. Under the Code that dual status is no longer possible.

8.

However, where a subsisting agreement is protected by
the 1954 Act
(i.e. not contracted out), paragraph 6 of Schedule 2 to the
Digital Economy Act 2017
provides that Part 5 of the Code (under which the FTT can order the termination, modification or renewal of Code agreements) does not apply to the agreement.

9.

Turning to the facts, I gratefully adopt the account given by the FTT, which was based on the parties’ agreed statement of facts.

10.

On 27 May 2004, the old lease was entered into between the respondent and the first appellant (then known as T-Mobile (UK) Limited)), for a term of 10 years from 18 February 2003. It was an agreement for the purposes of paragraph 2 of the old Code, and it demised a defined site on the roof of the Building. The provisions of
sections 24
to 28 of
the 1954 Act
were excluded (i.e. the old lease was ‘contracted out’). By a Deed of Assignment dated 23 June 2010 the old lease was assigned to the appellants.

11.

On 17 February 2013, the contractual term of the old lease expired, and of course was not continued by
the 1954 Act
because it had been contracted out. It is agreed that the old lease has at no time been a ‘subsisting agreement’ within the meaning of paragraph 1(4) of the Transitional Provisions under Schedule 2 to the
Digital Economy Act 2017
.

12.

By a letter dated 9 September 2016, the appellants informed the respondent of their “wish to upgrade their existing installation” at Castlemaine House. The letter included the following text:

“I refer to the Lease dated 27th May 2004 which requires that Landlord consent is required (such consent is not to be unreasonably withheld or delayed) for the proposed works. I would be most grateful if you could confirm your consent to the proposed works by signing the letter attached and returning it to the Warrington address listed above.”

13.

Following the Code coming into force on 28 December 2017, the appellants’ agent sent the following email to the respondent dated 26 November 2018:

“We act on behalf of Everything Everywhere Limited and Hutchinson 3G UK Limited who have an expired lease with yourself at the above address.

Our client proposes to carry out upgrade works to facilitate changes in technology, coverage and capacity and fulfil government aims to connect communities and deliver high quality service. Therefore, included within this e-mail is the new Electronic Communications Code introduction letter for the site above (Castlemaine House), in relation to the apparatus currently residing on the rooftop.

Please review, I would welcome any comments going forward.”

14.

On 10 December 2018, the appellants again wrote to inform the respondent of their wish to carry out further works on their existing installation. The letter included the text set out at paragraph 13 above.

15.

By an email to the respondent on 11 December 2018 the appellants’ agent chased for a response to their previous email, once again referring to having an expired lease at the address, and including a new code offer letter. The agent chased again by email on 4 January 2019 and again on 23 January 2019.

16.

A holding response was sent on behalf of the respondent on 23 January 2019. By a letter dated 15 December 2021, the respondent referred to contact between the parties’ agents and gave consent to proposed works at Castlemaine House, stating that the same “are within the rights granted to the Operator by the Lease”, and setting out provisos and conditions for the conduct of those works.

17.

By a letter of 14 May 2024, in similar form, the respondent again referred to a lease between the parties at Castlemaine House and gave consent to the carrying out of further works, again on provisos and conditions set out therein.

18.

A statutory notice was served on the respondent, under paragraphs 20 and 27 of the Code, by the claimants under cover of a letter dated 4 March 2024 and, on 6 November 2024 a reference seeking rights under paragraph 20 of the Code was received by the FTT from the appellants.

19.

It is agreed that the appellants have continued to pay rent on a quarterly basis since the contractual expiry of the old lease, albeit at a higher rate (and neither party has any information as to how or when the rent was increased). Invoices for rent sent by the respondent from 15 May 2019 to 18 November 2020 contained the following words:

“THE ABOVE SUMS ARE DEMANDED WITHOUT PREJUDICE – LEASE EXPIRED, HOLDING OVER”

20.

From 9 March until 2025 the invoices contained the following words:

“THE ABOVE SUMS ARE DEMANDED WITHOUT PREJUDICE LEASE OUTSTANDING RENT REVIEW

THE ABOVE SUMS ARE DEMANDED WITHOUT PREJUDICE LEASE EXPIRED”

Issue 1: the status of the appellants after expiry of the old lease.

The decision in the FTT

21.

The FTT was asked to decide whether the appellants have continued to occupy the site after the expiry of the old lease as tenants at will or as periodic tenants. The significance of the issue is that if the appellants are tenants at will it is uncontroversial that they can seek to have a new Code agreement imposed on the site provider by the FTT.

22.

The FTT set out the facts and the parties’ arguments and observed that there was no evidence of any negotiations for a new tenancy after the expiry of the old lease in 2013. By November 2018 rent had been demanded and paid on the usual quarter days as under the old lease. The wording on the invoices (of which none could be found prior to 2019) was as follows:

“could have been used without thinking, …. There was no evidence before the Tribunal that such wording had been used after careful consideration of the current position between the parties.”

23.

As to the correspondence about the upgrade of the appellants’ equipment, the FTT agreed with the respondent that the letters:

“indicated that the Claimants considered themselves as already occupying the site on a reasonably long-term basis and was suggestive of them still having a lease and the Respondent as being their landlord.”

24.

The FTT took the view that there was no evidence that the respondent was averse to a new tenancy having the protection of
the 1954 Act
. It acknowledged that the payment of rent does not give rise to a presumption of a periodic tenancy, but said that in the present case there was no evidence that that was not the parties’ intention. It concluded (with reference to authorities discussed below):

“56.

Taken altogether, the Tribunal finds that, on the evidence, this is one of those situations which Nicholls LJ stated was “unlikely to arise often” in
Javad
. There were no circumstances or conduct to “negate any intention to enter into a periodic tenancy agreement”, as referred to in
Smoke Club
and, looking objectively at the facts, it is a case where rent having been demanded and paid for over five years “failing more” the inference “sensibly and reasonably” to be drawn (as per Javad) is that the parties intended that at expiration of the Lease, a quarterly periodic tenancy arose.

57.

Having found that a quarterly periodic tenancy arose at the expiry of the Lease, the Tribunal accepts that it would have had protection under Part II of
the 1954 Act
, and the site was being occupied by the Claimants for the purposes of business.”

The arguments for the appellants

25.

It is well-established that where a lease expires and the lessee continues in occupation, paying the same rent, the parties’ conduct has to be considered objectively to ascertain whether they intend their relationship to be landlord and tenant at will, or landlord and tenant under a periodic tenancy.

26.

For the appellants, Mr Radley-Gardner KC said that the FTT’s decision was wrong in law and illogical. He starts from the FTT’s proposition that this was a “failing more” case (see the FTT’s paragraph 56, set out above). The phrase is from the judgment of Nicholls LJ in
Javad v Aqil

[1991] 1 W.L.R. 1007
at p1012:

“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.”

27.

So where a lessee holds over and pays rent after the expiry of a fixed term, failing more there will be a periodic tenancy; but normally, as Nicholls LJ said and as Mr Radley-Gardner KC emphasised, there will be more, and in this case there was. Furthermore, the holding over case has been said to be a “classic circumstance in which a tenancy at will would exist” (Knox J in
Cardiothoracic Institute v Shrewdcrest Limited

[1086] 1 WLR 368
at 376H.

28.

Mr Radley-Gardner KC pointed to the following features which he says show that in this case here was “more”, as Nicholls LJ said there usually would be:

a.

The fact that the old lease was contracted out of
the 1954 Act
; there is no reason to think that either party would want a protected business tenancy to arise after 2013 (it is not in dispute that if there was a periodic tenancy it would have that protection).

b.

The four requests by the appellants for permission to carry out works and to upgrade their equipment, which it is argued indicates that the appellants did not think they had any new rights.

c.

The appellants’ attempts to open negotiations for a new agreement in December 2018.

d.

The rent demands which use the words “lease expired” and “holding over”.

e.

The fact that the appellants’ presence on the site was easily explained by the old Code, which made their occupation lawful until the respondent initiated a process for their removal.

29.

The statutory context is said to be vital. The inference of a periodic tenancy fills what would otherwise be an unexplained vacuum; here there is no vacuum because the position is explained by the defensive rights given to the appellants under the old Code.

30.

Mr Radley-Gardner KC acknowledged that where negotiations are in progress that is a strong indication of a tenancy at will, but said that negotiations are not a necessary feature of a tenancy at will. In the presence of these multiple factors he argued that the FTT’s conclusion that his was a “without more” case where nothing was going on except occupation and the periodic payment of rent was illogical. Its conclusion did not follow from the facts.

The arguments for the respondent

31.

Mr Wills KC also started from
Javad v Aqil
, and also sets out the following passage from
Barclays Wealth Trustees (Jersey) Limited v Erimus Housing Limited
[2014] EWCA Civ 303
, where Patten LJ summarised the law at paragraph 23:

“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.”

32.

The emphasis is added by Mr Wills KC, who pointed to negotiations as a crucial factor; that was the reason why a tenancy at will was found by the Tribunal in
Arqiva Services Limited v AP Wireless II (UK) Limited (Queens’s Oak)

[2020] UKUT 195 (LC)
. He agrees that the “without more” logic is alive and well; in
Smoke Club (In Administration) v Network Rail Infrastructure Limited
[2021] UKUT 78 a periodic tenancy was inferred even though there had been negotiations (in which the tenant refused to accept a tenancy at will).

33.

Furthermore, the FTT heard the evidence, evaluated it, and drew inferences from it, and the Tribunal should not interfere unless there has been an error of law or a failure of logic, as the Tribunal (the Chamber President, Edwin Johnson J) explained in
AP Wireless II (UK) Limited v EE Limited and Hutchison 3G UK Limited (Equipoint)

[2026] UKUT 45 (LC)
.

34.

Turning to the facts, Mr Wills KC noted that the payment of rent is neutral and that the FTT understood that; that it inferred from the letters requesting consent that the appellants thought they had a lease, and that the FTT took the view that there was nothing to be weighed in the balance against that. It was entitled to place no real weight on the caveats to the rent demands. The letters requiring consent indicated that the appellants thought they were a party to a long-term arrangement since otherwise they would not take the step of investing in the site by upgrading their equipment; the panel was aware of the appellants’ submissions that the position was explained by the protection of the old Code, but of course the protection of
the 1954 Act
would have been far more robust than the merely defensive provisions of the old Code (under which the landlord was entitled to take steps to remove the equipment after expiry of the lease). The panel was entitled to draw the inference it drew as to the basis on which the appellants proceeded.

35.

The FTT directed itself correctly as to the importance of negotiations, and did not regard them as necessary to a finding of a tenancy; and it acknowledged that it would be rare for a periodic tenancy to be inferred.

36.

In view of all this the FTT’s inference from the facts was one it was entitled to make and the Tribunal cannot properly interfere.

Conclusions on the first issue

37.

I begin by saying that this was certainly not a case where there was occupation, payment of rent and nothing more. The facts agreed by the parties – the requests for consent, the attempt to start negotiations, the caveats to the rent demands (albeit years after the old lease expired), the fact that the old lease was contracted out, the existence of the old Code – are all “more” and rule out a finding that this is a “without more” case.

38.

The question is what these facts indicate, when considered objectively, about the parties’ intentions.

39.

I agree that the payment of rent is neutral.

40.

To my mind the fact that the old lease was contracted out is highly significant. Mr Wills KC stated that that was not a factor that could be considered but I do not understand why. It is part of all the circumstances of the case. We know that the parties did not want the old lease to be protected by
the 1954 Act
and there is no evidence that they had changed their mind. On that basis I do not think that the requests for consent for works can be seen to indicate that the appellants thought they had a long-term interest. I would regard them as neutral; they are likely to have proceeded from prudence and the wish to ensure that the respondent could not claim that the appellants were in breach of covenant, in view of the fact that either a tenancy at will or a periodic tenancy would be on the same terms as the old lease so far as possible. The requests are perfectly consistent with a stable situation where the respondent had shown no wish to remove the appellants and was enjoying the rental income, and where it was open to the parties to make a new agreement when they were minded to do so.

41.

I go back to the passage quoted above (paragraph 31) from
Barclays Wealth Trustees
, where we are told that the inference to be drawn from negotiations is even stronger where a periodic tenancy would carry with it the protection of
the 1954 Act
. Here there were no negotiations until later, but the fact that a periodic tenancy would take the parties into a statutory regime which we know they did not want between 2004 and 2013, in the absence of evidence that either had changed their mind, is by itself a reason to infer a tenancy at will.

42.

The caveats to the rent demands are consistent with that. We have them only from 2019, but they appear consistently from then on and there is no reason to suppose the same caveats had not been stated throughout. The words “without prejudice” are often used unthinkingly; but here there are also the words “lease expired” and, importantly, “holding over” and “lease outstanding” which are apt to describe a tenancy at will but not a periodic tenancy. The use of several expressions is a bit scatter-gun but indicates that the landlord was trying quite hard to protect itself from any inference that a new arrangement had begun.

43.

In light of those factors I have no hesitation in agreeing with the appellants that the FTT’s analysis was wrong in law. The panel paid insufficient heed to the agreed facts which made it clear that this was not a “without more” case, and its conclusion did not follow from its premises. It gave insufficient consideration, or drew the wrong conclusions, from the fact that a periodic tenancy would have taken the parties into
the 1954 Act
regime. Those were errors of law and of logic and I set aside the FTT’s conclusion, and substitute the Tribunal’s determination on the first issue that the appellants held over as tenants at will.

44.

On that basis the appellants are entitled to make an application under Part 4 of the Code.

Issue 2: the Part 4 jurisdiction issue

Introduction, and the decision in the FTT

45.

The appellants appeal the FTT’s decision on the second issue before it: it found that since the appellants hold a periodic tenancy of the site, which is not contracted out of the protection of
the 1954 Act
, they are not able to make an application for a Code agreement under Part 4 of the Code.

46.

As I have found that the appellants are tenants at will, this issue arises only if I am wrong about the first issue; the parties have asked me to decide it in any event. As things stand my decision on this point is therefore
obiter
. It is a point about which there is as yet no authoritative decision, although it was decided
obiter
by the Tribunal (the Chamber President, Mr Justice Edwin Johnson) in
AP Wireless UK (II) Limited v EE Limited and Hutchison 3G UK Limited (Equipoint)

[2026] UKUT 45 (LC)
. I respectfully differ from the President’s conclusion on this point.

47.

In order to understand the issue we have to look at the transitional provisions enacted alongside the Code, in Schedule 2 of the
Digital Economy Act 2017
. Paragraphs 1 and 2 of that Schedule provide, so far as relevant:

“1(4) A
“subsisting agreement”
means—

(a)

an agreement for the purposes of paragraph 2 or 3 of the existing code.

…

2(1) A subsisting agreement has effect after the new code comes into force as an agreement under Part 2 of the new code between the same parties, subject to the modifications made by this Schedule.”

48.

An agreement under the old Code had to be in writing and therefore an unwritten agreement is not a subsisting agreement.

49.

The straightforward effect of paragraph 2(1) of the transitional provisions is that an agreement conferring rights under the old Code, made before the Code came into force, takes effect as if it had been made under the Code, subject to some modifications that do not concern us here. On expiry, Part 5 of the Code takes effect so that the agreement is protected by paragraph 30 and, subject to the requirements of paragraph 33, either party may apply for it to be renewed or modified under paragraph 34. If the operator wants entirely new Code rights it may make an application under Part 4 at any time, but for renewal or modification of its existing rights it must use Part 5 (
Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited

[2022] UKSC 18
, at paragraphs 130 and 131).

50.

There are exceptions to the availability of Part 5 to subsisting agreements. Paragraph 6 of the transitional provisions in Schedule 2 to the
Digital Economy Act 2017
says this:

“(2)

Part 5
of the new code (termination and modification of agreements) does not apply to a subsisting agreement that is a lease of land in England and Wales, if—

(a)

it is a lease to which
Part 2
of the
Landlord and Tenant Act 1954
applies, and

(b)

there is no agreement under
section 38
A
of
that Act
(agreements to exclude provisions of
Part 2
) in relation the tenancy.

(3)

Part 5
of the new code does not apply to a subsisting agreement that is a lease of land in England and Wales, if—

(a)

the primary purpose of the lease is not to grant code rights (the rights referred to in
paragraph 3
of this Schedule), and

(b)

there is an agreement under
section 38
A
of
the 1954 Act
in relation the tenancy.”

51.

The Supreme Court in
Compton Beauchamp
had to decide whether the operator who has held a fixed-term lease which was a subsisting agreement within paragraph 6(2) above, who therefore could not use Part 5 of the Code, could use Part 4 to secure a new Code agreement, or was instead confined to the renewal procedure under
the 1954 Act
. The Supreme Court held that it could not use Part 4. Lady Rose, with whom the other members of the Supreme Court agreed, said at paragraph 166 about Cornerstone, the appellant, which was the assignee of a ten-year lease of a roof-top telecommunications site which had expired in 2012:

“166 … Before the Upper Tribunal, Cornerstone argued that it had a choice either to seek a new tenancy under
the 1954 Act
or to apply for the imposition of code rights under Part 4 of the new Code. The Upper Tribunal rejected the numerous arguments put forward as to why this should be so. It pointed out at para 96 that such a choice would go against the Law Commissions recommendation that operators should not obtain the benefits of the new Code retrospectively and that operators with the benefit of the protection of Part 2 of
the 1954 Act
should be required to use that route even though it had serious disadvantages compared with Part 4 of the new Code. One disadvantage highlighted was that the operator would escape the provisions in
section 34
of
the 1954 Act
for determining the rent under a new tenancy, which substantially replicate the open market, and would instead obtain access to the valuation assumptions in paragraph 24 of the Code, including the no-network assumption which strips out the component of value referable to the intended use of the site as part of the operators network.

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. …

168 There is a difficulty here that … 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.

169 … It is open to Cornerstone to apply for additional code rights under Part 4 of the Code even though it is in occupation of the site. But it cannot bypass the fact that it has ongoing rights under a tenancy which it is entitled to renew or bypass the terms of the renewed tenancy once it is granted by applying in effect for modifications of those rights under Part 4.”

52.

I have found that the appellants have a tenancy at will. That is not a subsisting agreement so Part 5 is not available to them and they can apply to have a Code agreement imposed on the respondent under Part 4 of the Code. What would be the position if instead they had, as the FTT found, an implied periodic tenancy?

53.

It is not in dispute that that periodic tenancy would not be a subsisting agreement because it was not in writing. It would not have been contracted out of
the 1954 Act
. The appellants as periodic tenants would have had security of tenure under
the 1954 Act
, but could not have used
section 26
to seek a new lease, because that provision is not available to periodic tenants. Only if the respondent as landlord sought to bring the agreement to an end could they then seek a new lease under
the 1954 Act
.

54.

Could they instead have used Part 4 of the Code?

55.

The FTT said no. At its paragraphs 58 and 59 it said that it was bound by the decisions of the Tribunal to that effect in
Arqiva Services Limited v AP Wireless II (UK) Limited (Queen’s Oak)

[2020] UKUT 195 (LC)
and in
Gravesham Borough Council v On Tower UK Limited

[2024] UKUT 151 (LC)
. That was a misunderstanding on the part of the FTT; neither of those decisions decided this point. Neither party to this appeal has sought to argue that either of those two decisions did so, so I need not go into detail about that misunderstanding.

56.

The FTT also said that the current case could not be distinguished from the decision of the Supreme Court in
Compton Beauchamp
(and set out Lady Rose’s reasoning as I have done above). It said that notwithstanding the absence of a right to give notice under
section 26
of
the 1954 Act
the appellants should not get the benefit of the Code when they had the protection of
the 1954 Act
. The panel referred to a previous FTT decision on the same point and the observation there that an operator in this position has security of tenure, and can apply for a new tenancy under
the 1954 Act
if the landlord seeks to remove it; “the only disadvantage to the [operator] is that it cannot access the “greater prize” of the substantial benefit of the no-scheme valuation.” The FTT thought that this was consistent with the policy of the Code to introduce only a gradual shift to the new valuation basis for existing sites.

The arguments for the appellants on the jurisdiction point

57.

For the appellants Mr Radley-Gardner KC argued that a periodic tenant with the protection of
the 1954 Act
is not in the same position as was Cornerstone in
Compton Beauchamp
. Cornerstone had the right to use
section 26
of
the 1954 Act
, and therefore had to use that route to a new agreement. It could not choose its regime and opt for Part 4 of the Code. By contrast, renewal is entirely outside the appellants’ control; they can seek a new agreement under
the 1954 Act
only if the respondent either issues friendly renewal proceedings (which it has no incentive to do) or if it issues hostile proceedings under
section 25
of
the 1954 Act
. Otherwise the appellants are stuck, and there is nothing they can do to meet their evolving technical needs. An operator with no independent right to renewal under
the 1954 Act
should be able instead to use Part 4 of the Code. The periodic tenant is in the same position as the tenant at will.

58.

The decision in
Gravesham
was very different; in that case an operator who could have sought a new lease under
the 1954 Act
lost its right to do so through inadvertence. It could not then turn to the Code instead. That is not relevant to the point in issue here.

59.

Mr Radley-Gardner KC acknowledged that this point was decided by the Tribunal in
Equipoint
, but on an
obiter
basis. I will come back to the Chamber President’s reasoning in due course.

60.

Furthermore, Mr Radley-Gardner KC observed that just as tenants at will are vulnerable to removal, so are the appellants. A tenant at will is liable to be removed under Part 6 of the Code on the basis that the landowner has not been bound by a Code right since the coming into force of the Code; the same is true of the implied periodic tenant, who has no Code rights because the periodic tenancy is not in writing.

61.

Therefore by virtue both of not having an independent right to renew its tenancy, and of its vulnerability to removal, the implied periodic tenant despite its protection under
the 1954 Act
should have access to Part 4 of the Code, and is not within the
ratio
of the decision in
Compton Beauchamp
.

The arguments for the respondent on the jurisdiction point

62.

For the respondent Mr Wills KC relied on the Chamber President’s decision in
Equipoint
. The President took the view that a periodic tenant with 1954 Act protection is not correctly classified as having no rights of renewal under
the 1954 Act
. Its rights are contingent, but that does not take the case outside the logic of what Lady Rose was saying; the operator in such a case should not get the retrospective benefit of the Code. If such an operator could use Part 4 that would cause practical problems as a result of
the 1954 Act
and the Code both being applicable to the tenancy. The operator is not “marooned”; it can apply for new rights under Part 4 if it needs them, and it has security of tenure.

63.

Mr Wills KC said that the Supreme Court’s decision in
Compton Beachamp
clearly gives rise to several policy principles:

(a)

the Code should not have retrospective effect;

(b)

only one statutory regime applies to a renewal of a Code agreement, and the party seeking a renewal does not choose which one; and

(c)

the parties should stick to their bargain during its term.

64.

Mr Wills KC took the view that
Gravesham
is relevant, in that it indicated that an operator with a 1954 Act lease that it could have sought to renew, but it has lost the opportunity, cannot then use Part 4. If such an operator is locked out of the Code, so should be a periodic tenant whose 1954 Act tenancy continues.

65.

Mr Wills KC asserted that had the periodic tenancy been in writing, so that it was a subsisting agreement, Part 4 would equally be unavailable to the tenant by virtue of paragraph 6(2) of the transitional provisions (save, of course, for the ability to use Part 4 to seek new rights at any stage). As to the appellants’ argument that they were vulnerable to removal, this is misguided; if an operator has an estate in land, a notice under paragraph 40 of the Code requiring it to leave would be a derogation from grant; it is not a rational interpretation of the Code for such a notice to be able to found an application requiring a tenant to vacate the land over which it enjoys a right to possession under a lease.

66.

Mr Wills KC argued that an operator who holds a written periodic tenancy granted before the Code came into force, which is therefore a subsisting agreement, is prevented by paragraph 6(2) from using Part 4 of the Code (save to acquire wholly new rights). It would not make sense to put the tenant under an unwritten periodic tenancy in a stronger position than such an operator. The fact that the periodic tenant with the protection of
the 1954 Act
cannot initiate a renewal process by using paragraph 26 is a complaint about
the 1954 Act
; it is not a problem arising from the Code.

Conclusion on the second issue

67.

The issue here is whether an operator who holds a site on an unwritten periodic tenancy, which commenced before the Code came into force at the end of 2017 and is protected under
the 1954 Act
, can apply for a Code agreement to be imposed on the landowner under Part 4 of the Code. It is agreed that such a tenancy is not a subsisting agreement; it does not fall within the terms of paragraph 6(2) of the transitional provisions. It is not in dispute that it can use Part 4 to acquire new Code rights in addition to (and different from) those it holds under its existing periodic tenancy, but the issue is whether it can use Part 4 in order to have a new agreement imposed on the landlord, thereby bringing its existing periodic tenancy to an end.

68.

As I said above, this point is free from authority. If the decision and reasoning of the Supreme Court in
Compton Beauchamp
in paragraph 166 and following was intended to apply to periodic tenants as well as to the operator who had held a fixed-term lease, then insofar as it was about periodic tenants it was
obiter
. However, in my judgment the decision, and Lady Rose’s reasoning, cannot have been intended to be applicable to periodic tenants.

69.

I say that, first, because the Supreme Court was considering only a tenant whose fixed-term lease had been continued by
the 1954 Act
; periodic tenancies were simply not in contemplation in the decision. Second, I take that view because Lady Rose’s reasoning is not applicable to periodic tenants.

70.

Lady Rose’s reasoning rests firmly on the fact that Cornerstone was able to seek a new lease under
section 26
of
the 1954 Act
. That ability was front and central to her explanation. Therefore the fact that a periodic tenant has security of tenure under
the 1954 Act
and has the ability to respond to seek a new lease in response to a move taken by its landlord does not lead to the conclusion to which Lady Rose came; it is the ability of the operator to take positive action that justifies its exclusion from Part 4: “Cornerstone must therefore use its rights under Part 2 of
the 1954 Act
to renew its lease”.

71.

The Supreme Court decided three cases in the decision known as
Compton Beauchamp
; and in the appeal to which Compton Beauchamp Estates Limited was the respondent it had to decide whether the fact that an operator was in occupation of a site with telecommunications equipment meant that it could not make an application under Part 4 against the landowner. The Supreme Court’s answer was that of course it could make such an application; the whole tenor of the Supreme Court’s decision is the need to look at the way the Code is intended to operate and to avoid the arbitrary exclusion of operators from the benefits of the new Code. It is now well-established that it is not in accordance with the policy of the Code for there to be “black holes” (an expression used in the
Queen’s Oak
decision) whereby operators are pointlessly excluded from the ability to get Code rights. The purpose of the Code is to ensure that operators have the Code rights they need under the new Code, to support the commercial and technical requirements of their businesses and the public need for rapid and reliable electronic communications. In my judgment it would not be in accordance with the policy of the Code for the appellants, if they held an unwritten periodic tenancy, to be unable to make an application for Code rights under Part 4 of the Code. If they cannot use Part 4, they are stuck. The respondent has no reason to bring the periodic tenancy to an end (especially now that consideration under a new agreement would be calculated under the Code following the coming into force of the
Product Security and Telecommunications Infrastructure Act 2022
). Whatever the merits of the appellants’ points about vulnerability, in practice the respondent is not going to seek to remove the appellants because it is enjoying a market rent for the site.

72.

The Supreme Court in
Compton Beauchamp
acknowledged the need to avoid changing the status of Code agreements retrospectively, but this is not a matter of applying the new Code retrospectively to an old Code agreement, because an unwritten implied periodic tenancy is not a subsisting agreement.

73.

There is force in Mr Wills KC’s argument that the Supreme Court decided that parties should stick to their bargain during its term; but it was no part of the bargain made when entering a periodic tenancy protected under
the 1954 Act
that that protection should debar the operator from the benefit of the Code, which had not been enacted when that bargain was made.

74.

As I said above I respectfully disagree with the decision of the President in
Equipoint
. He heard the same arguments as I have heard, and gave a number of reasons for disagreeing with the operator’s arguments. He held that the fact that the operator under a periodic tenancy does have a contingent and limited right to seek a new agreement under
the 1954 Act
, only in response to action taken by the landlord, meant that the reasoning in
Compton Beauchamp
did apply. I have to say that I disagree. The right of the periodic tenant to renewal if and only if the landlord makes a move which it is clearly not going to make, precisely because the tenant is a Code operator, is not on a par with the ability of Cornerstone to seek a new lease using
section 26
of
the 1954 Act
. The periodic tenant’s right to renew is in practical terms worthless to it; it is not going to get the opportunity to exercise it. It should not therefore be a reason for restricting the ambit of Part 4 of the Code.

75.

Second, the President was troubled by the practical problems that would arise if periodic tenancies, protected by
the 1954 Act
, were put into a special category, separated from tenants with fixed-term tenancies protected by
the 1954 Act
. What would happen if, following a reference under Part 4 of the Code, the landlord served a
section 25
notice on the periodic tenant? I do not think that that essentially procedural issue should be decisive of this point. It is hypothetical and would be a matter of case management if it happened. In similar vein Mr Wills KC argued that the landlord should not lose its right to renew under
the 1954 Act
, and that it would lose that right if the tenant were able to access Part 4 of the Code. I find it difficult to see that the landlord would lose anything; it could, as the President hypothesised, serve a
section 25
notice, although the consequence of that would be a matter for case management.

76.

Further, the President was impressed by the previous FTT decision on the point and the observation in that decision that the operator is not in these circumstances “marooned”. It can still apply for additional rights under Part 4, and has the protection of
the 1954 Act
. It cannot get the benefit of the new Code rent, but that “falls well short” of justifying putting periodic tenants into a special category. In my judgment the periodic tenant would not be put into a “special category” if it were able to make use of Part 4 of the Code. It would be put alongside tenants at will and others who need to access the Code and do not have the option of taking action under
the 1954 Act
. Without that access it is indeed marooned in the sense that is by far the most important to the parties: without that access the respondent can keep the appellants out of the Code. The fact that such a tenant can use Part 4 to obtain
new
rights under the Code is of no comfort to an operator in that position.

77.

Mr Wills KC argued that the distinction between a periodic or fixed term agreement is one which the draftsperson of
the 1954 Act
applied when deciding which tenancies a tenant could renew by serving a
s. 26
notice. A complaint that a tenant may not renew a 1954 Act periodic tenancy is a complaint about
the 1954 Act
. I agree that Parliament made that distinction when enacting
the 1954 Act
, which was enacted at a date when electronic communications were the stuff of science fiction and the Code was undreamt of. The fact that periodic and fixed term agreements are treated differently under
the 1954 Act
does not mean that both types of agreement should be treated in the same way when it comes to access to Part 4 of the Code for the purpose of obtaining a new agreement, and indeed is a reason for treating them differently.
The 1954 Act
was enacted as a protection for business tenants, not a trap; it does not seem to me to be realistic to regard the provisions of
the 1954 Act
as a good reason to prevent periodic tenants from accessing a new regime that was introduced specifically for the benefit of Code operators – and that would be a result of preventing periodic tenants from seeking a new agreement under Part 4.

78.

Accordingly in my judgment an operator who holds a site on an unwritten periodic tenancy, which commenced before the Code came into force at the end of 2017 and is protected under
the 1954 Act
, can apply for a Code agreement to be imposed on the landowner under Part 4 of the Code. The situation falls outside the reasoning and decision in
Compton Beauchamp
in relation to an operator holding over after the expiry of a fixed-term lease protected by
the 1954 Act
.

79.

I have reached that conclusion without addressing the appellants’ argument about vulnerability, since Part 6 I take the view that the point is clear purely on the basis of the reasoning in
Compton Beauchamp
and the policy of the Code.

80.

Mr Wills KC referred to the operator whose 1954 Act-protected periodic tenancy is in writing, who has a subsisting agreement and who, according to the respondent, is prevented by paragraph 6(2) of the transitional provisions from using Part 4 of the Code. There is, again, no authority on that point and it is not agreed by the appellants (save to the extent that such an operator can use Part 4 to obtain new rights under the Code). It seems to me that what I have said above applies equally to such a tenant who, again, has only a contingent right to renew and is therefore not within the reasoning in
Compton Beauchamp
.

Issue 3: do the appellants’ separate notices constitute a valid notice under paragraph 20 of the Code?

81.

Paragraph 9 of the Code provides:

“(1)

A code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator.”

82.

Obviously therefore a notice under paragraph 20 seeking Code rights over land must be given to the occupier of the land, who is the person who can confer those rights. The Supreme Court in
Compton Beauchamp
held that when a notice is given by an operator that is itself in occupation then its occupation has to be ignored for that purpose.

83.

On 4 March 2024 the appellants’ solicitors sent a letter to the respondent enclosing two notices said to be given under paragraph 20 of the Code – so the appellants, who were joint lessees under the old lease, gave not one notice from the two of them but two identical notices. The respondent said that that meant that no valid notice had been given. Each appellant was in occupation of the site; if they each gave a paragraph 20 notice then they each should have given notice to the other, and their notices to the respondent were invalid because they were addressed to the wrong person.

84.

The FTT said this:

“73.

With regard to the notices not being in joint names, the Tribunal returns to the decision of the Supreme Court and the words of Lady Rose in Compton Beachamp at paragraph 140:

“… The proper implementation of the Code does not require that all occupation of any operator with ECA installed on the site falls to be disregarded. The interpretation of para 9 set out above means only that it is the occupation (if any) of the operator who seeks to have a new code right conferred on it which is ignored when considering how to identify the “occupier of the land” (as that term is used in para 9, according to the definition in para 105). If, having allowed for this, it can be seen that another person who happens to be an operator is “the occupier of the land for the time being” (para 105(1)), then the operator seeking to have the new code right has to approach that person (and any person who would also need to be bound) to seek their agreement.”

74.

In this case, although the two notices served by each of the operators may have been enclosed in a joint letter, they were individual notices. One was issued by EE Limited on the Respondent and the other by Hutchinson 3G UK Limited on the Respondent.

75.

As such, when considering the occupier of the land on each of the notices, it was only that operator whose rights were to be ignored. As the other operator also had rights and was an occupier under a periodic tenancy, then there is a valid argument, based on the decision in
Compton Beachamp
, that if a joint notice had not been given, the notice should have been served on the other operator who was the occupier of the land for the time being.

76.

In any event, regardless of the validity of the notice, as the Tribunal has already found that it does not have jurisdiction to deal with this matter, the references are dismissed.

85.

In view of the way paragraphs 75 and 76 are expressed I am not sure the FTT intended to deal with this point rather than simply to acknowledge the respondent’s argument. But at any rate the parties regard it as a finding and it is appealed.

The parties’ arguments.

86.

For the appellants, Mr Radley-Gardner KC said that the notices together were valid. They were in identical form and sought identical rights to be exercised jointly with the other operator; they appended a draft agreement in which they were the joint lessees. Each operator is clearly not the “occupier” vis-à-vis the other; the occupation of the two operators together is “tuned out” in the same way as it would be if there were a single operator in occupation.

87.

For the respondent, Mr Wills KC said:

a.

only the occupation of the operator giving a notice is to be disregarded for the purpose of ascertaining who is the “occupier” who can confer Code rights. So in this case as each gave separate notices the occupier was the other;

b.

no single joint tenant has the power to serve a notice that could lead to the termination of a joint tenancy and its renewal on different terms which bind joint tenants;

c.

each notice proposed an agreement that would confer Code rights on both appellants; a paragraph 20 notice cannot propose the conferral of Code rights on any person other than the giver of the notice.

88.

Mr Wills KC relied on the position under
the 1954 Act
, where a notice which must be given to a tenant must be given to all joint tenants; and where joint tenants are served with a
section 25
notice it is not permissible for only one of two joint tenants to apply for a new tenancy.

89.

Mr Wills KC argued that the giving of two separate notices is problematic because of the difficulties that would arise if one of the operators changed its mind after the notices had been given.

Discussion and conclusion on the third issue

90.

It is important to separate the two issues here, as Mr Wills KC clearly did although the FTT did not.

91.

One issue is about who is the occupier; the respondent’s position is that each of the two appellants is the occupier vis-à-vis the other and each could only give notice to the other. The ratio of
Compton Beauchamp
is that the occupation only of the occupier giving the notice is disregarded.

92.

The other issue is whether the way the notices were given, in identical form by each operator, is a valid way of giving notice under paragraph 20 in these circumstances.

93.

I deal with the latter point first. I agree with Mr Wills KC that if only one of the two appellants had given a paragraph 20 notice and the other had not, only the one giving notice could get Code rights.

94.

But this is not that case. The two notices were sent with one covering letter appending one draft agreement in which the two operators were joint lessees. In my judgment that is a perfectly valid way for two joint tenants to give notice together, together proposing to bring their current arrangement to an end, and together proposing a new lease granting Code rights to the two of them jointly. I fail to see why the use of two copies of the notice, each signed by one operator but served together with a single draft agreement annexed makes the position any different from how it would have been if one notice had been given by and signed by two operators. This is not a case where one operator has given notice and the other has not; they are joint tenants and have given notice together. Nor is it a case where one operator has asked for Code rights to be conferred on a third party; the two operators are each asking for Code rights to be conferred on the two of them.

95.

I agree that a problem would arise if one operator changed its mind after giving the notice. But a problem would equally arise if the two gave a single joint notice and one of them then changed its mind. That possibility does not invalidate the notices in this case.

96.

Once that is established the identity of the “occupier” is clear. The two operators are joint tenants under the current tenancy at will; they are giving notice together; their joint occupation is disregarded just as surely as would be the occupation of a single occupier giving notice as sole tenant.

97.

Accordingly the appeal on this issue succeeds.

Issue 4: were the notices in valid form?

98.

Paragraph 20 of the Code sets out the requirements for a notice seeking Code rights, and the
Product Security and Telecommunications Infrastructure Act 2022
added the following provision:

“(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.

…

(5)

Before applying for an order under this paragraph, the operator must, if it is reasonably practicable to do so, consider the use of one or more alternative dispute resolution procedures to reach agreement with the relevant person.”

99.

Paragraph 90 of the Code requires Ofcom to prescribe a form for the notices required to be given under the Code, and there is an Ofcom prescribed form of section 20 notice. It includes the information required by paragraph 20(2A) in several places, and it includes (four times) the substance of paragraph 20(5). Paragraph 88 of the Code says this:

“(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.”

100.

The Ofcom prescribed form helpfully includes both wording in black on white
for use in all cases, and highlighted wording for the parties to delete or amend as
required. At the end of the notice itself there is a section in a box headed
“Supplementary Information for the Recipient of this notice”, of which
paragraph 1 looks like this:

“An order under paragraph 20(4) of the Code is an order which imposes on us and you an agreement. The effect of such an agreement would be
[to confer the Code Rights on us / provide for the Code Rights to bind you]
. Before applying for an order, we are required to consider, to the extent it is reasonably practicable to do so, the use of one or more alternative dispute resolution procedures to reach an agreement with you (paragraph 20(5) of the Code).”

101.

Paragraph 6 under that heading is as follows:

“
An order under paragraph 27(2) of the Code is an order which [confers on us/provides for you to be bound by] such temporary code rights as appear to the court reasonably necessary securing the objective set out in paragraph 27(3) of the Code. This objective is that, until proceedings under paragraph 20 and any proceedings under paragraph 40 of the Code determined, the service provided by our network is maintained and the Existing Apparatus properly adjusted and kept in repair
. Before applying for an order, we are required to consider to the extent it is reasonably practicable to do so, the use of one or more alternative dispute resolution procedures to reach an agreement with you (paragraph 20(5) of the Code).”

102.

In the notices as given those two paragraphs read as follows:

““An order under paragraph 20(4) of the Code is an order which imposes on us and you an agreement. The effect of such an agreement would be to confer the Code rights on us/ provide for the Code Rights to bind you.”

“6.

An order under paragraph 27(2) of the Code is an order which [confers on us/provides for you to be bound by] such temporary code rights as appear to the court reasonably necessary securing the objective set out in paragraph 27(3) of the Code. This objective is that, until proceedings under paragraph 20 and any proceedings under paragraph 40 of the Code determined, the service provided by our network is maintained and the Existing Apparatus properly adjusted and kept in repair.”

103.

So the final sentence of each paragraph is not there; it has been inadvertently
deleted.

104.

The prescribed form includes– and the notices as given included – that same
information in two other places. Paragraph 13A in the main body of the form
reads:

“Before applying for an order under paragraph 20(4) and paragraph 27(2) of the Code we must, if reasonably practicable to do so, consider the use of one or more alternative dispute resolution procedures to reach agreement with you.”

105.

At the end of the notice a further boxed section, headed like the first one
“Prescribed Information for the Recipient of this Notice”, is dedicated to
alternative dispute resolution and paragraph 1 is as follows:

“Paragraph 20(5) of the Code sets out that the party seeking a Code Agreement must, if it is reasonably practicable to do so, consider the use of one or more alternative dispute resolution (“ADR”) procedures before applying for an order under paragraph 20(4) or 27(2) of the Code.”

106.

Because of the two omissions, the respondent argued before the FTT that the
notices were not in the form prescribed by Ofcom. The FTT agreed. At its
paragraph 69 it said:

“Both parties referred to the
Newbold v Coal Authority

[2014] 1 WLR 1288
, in which the Court of Appeal stated at paragraph 70:

“In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In the
Mannai
case
[1997] AC 749
, 776B Lord Hoffmann gave the example of the Expired Lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result.”

70.

… The Tribunal finds that the wording of paragraph 88(2) clearly requires strict compliance. There is no provision that a notice may be given in a form substantially similar to the form prescribed by OFCOM, nor is there anything in the template notice prescribed by OFCOM that suggests that some of the wording set out in that form is less important than others and need not be included.”

The parties’ arguments

107.

For the appellants, Mr Radley-Gardner KC argued that it cannot be right that the
omission of a sentence twice in the Supplementary Information that appears twice
elsewhere including in the body of the notice is sufficient to render it void under
paragraph 88(3).

108.

Mr Radley-Gardner KC acknowledged that in
Avon Freeholds Limited v Cresta
Court E RTM Company Limited

[2025] EWCA Civ 1016
the Court of Appeal held
that where a statute required that a notice be served on “all qualifying tenants” (for
the purposes of the acquisition of the right to manage a block of flats), and spelled
out the consequence of non-compliance, the failure to serve one qualifying tenant
was fatal to the validity of the procedure. It is argued that that is not what happened
in this case. The flexible approach set out in
Newbold v Coal Authority
[2013]
EWCA Civ 584 is appropriate. There was not the slightest prejudice to the
respondent.

109.

Mr Radley-Gardner KC referred to
Equipoint
, where notices had been served just
before the Code was amended to require the inclusion of information about ADR.
The Tribunal held that notices that were in the prescribed form when served were
not invalidated by the later change in the required information. The Tribunal
found,
obiter,
that had the notice been served after the statutory amendment came
into force then of course it would not have been valid – none of the required
information about ADR was present. However, the President also observed that
the “steel trap” effect of
Cresta Court
had its limits, and observed at paragraph
229 that some defects would not invalidate a notice:

“Turning to the full stop example, it seems to me that this is not a realistic example. Paragraph 88(2) requires that where Ofcom has prescribed a form, the relevant notice must be "in that form". I do not think that a missing full stop would prevent the relevant notice from being "in that form". I can see that there will be an area, in terms of mistakes or omissions in the relevant form, where argument is likely as to whether the relevant form is "in that form".”

110.

For the appellants it was argued that the omission of material that is also contained
elsewhere in the notice makes the error so trifling that it is nearer the “full stop”
example and does not mean that the notice is not “in that form”. Similarly, under
the 1954 Act
, it has been held that minor omissions in the statutory mandatory
information are not fatal:
Baglarbasi v Deed Method Limited

[1991] 2 EGLR 71
.

111.

Furthermore, the information is not in the notice itself but in the Suppementary
Information; the notice itself is clearly in the form prescribed.

112.

For the respondent, Mr Wills KC said that the judgment of the President in
Equipoint
provides a complete answer to this ground. Where information is
required to be included in a Code notice and it is not included, the notice is invalid.
There is no scope for the approach in
R v Soneji (Kamlesh Kumar)
[2005] UKHL
49, whereby the consequences of an error are to be assessed in light of the purpose
of the procedure, because in this case the consequences of non-compliance are set
out in paragraph 88: the notice is invalid. It falls squarely within the circumstances
considered by the Court of Appeal in
Cresta Court E
. The statute does not say that
a notice must be in the form prescribed by Ofcom or in a form “substantially to
the same effect”. The fact that the respondent was not prejudiced is irrelevant. This
error does not come within the “missing full stop category”. The notice is not in
the prescribed form.

Discussion and conclusion on the fourth issue

113.

The first thing to say is that the notice complied with paragraph 20 of the Code. It
included everything that paragraph 20 requires. The missing information was that
the appellants were obliged to consider ADR before making an application to the
FTT under paragraph 20; and that information appeared in two other places in the
form. Did the omission nevertheless mean that the notice was not “in the form”
prescribed by Ofcom?

114.

In a literal sense of course the notice was in that form. The appellants used
Ofcom’s prescribed form, amending or deleting highlighted parts as required. Two
identical sentences in one of the “Supplementary Information” sections were
deleted; does the omission of those sentences take the notice out of the Ofcom
form? There is of course no scope for a finding that the notice is not in the correct
form but is still valid, because paragraph 88(3) states the consequences of failure
to use the form. The question is: was there such a failure?

115.

This sort of question is always difficult, because of the potential for “slips” or
minor errors that truly make no practical difference whatsoever. The fact that no-
one quarrels with the “missing full stop” example (from
Equipoint
, paragraph 107
above) means that there is room for a finding that the notice is in the correct form
even though there is a
de minimis
departure from the precise contents of the form;
and the President acknowledged in paragraph 229 of that decision that there would
be cases going beyond the missing full stop where there was room for argument –
and this is certainly such a case.

116.

The decision of the Supreme Court in
A1 Properties (Sunderland) Ltd v Tudor
Studio RTM Company Limited

[2024] UKSC 27
, like
Cresta Court E
RTM, was
not about mistakes in a form but about the omission of a procedural step; and the
Supreme Court restored the approach in
Soneji
in cases where the statute does not
prescribe what is to happen if a procedural step missed. The Court of Appeal in
Cresta Court
decided that there was no room for the
Soneji
approach where the
statute does prescribe the consequences of missing a procedural step.

117.

The present case is not one where a prescribed procedural step (such as the service
of a notice on a person) has been omitted, and so I do not think it is on all fours
with
Cresta Court
. Nor is it on all fours with the decision of the House of Lords in
Mannai Investment Co Limited v Eagle Star Life Assurance Co Limited
[1997]
UKHL 19 where a notice was found to be valid despite an error giving the wrong
termination date for a tenancy. In the present case there was no incorrect statement,
nor anything misleading or inaccurate.

118.

The fact that there was no prejudice to the respondent is not the answer. If all four
instances in the form of the information in the missing sentence had been omitted,
then the notice would be invalid even if it was known or admitted that the
respondent was aware of the missing information and was not prejudiced; that is
consistent with the President’s view, expressed in
obiter
dicta in
Equipoint
, with
which I respectfully agree.
The difference here, and what is in my judgment
decisive, is that the sentence deleted appears twice elsewhere in the form in
virtually identical wording, conveying exactly the same information. The point is
not that the respondent was not prejudiced but that there was nothing missing from
the information prescribed in the form. For the form to be invalid in the present
circumstances where the missing sentence still appeared twice in the form does
not, in my judgment, make sense. In my judgment the notice was in the
form prescribed by Ofcom despite the two omissions; it was therefore not
invalidated by paragraph 88. The appeal on this point succeeds.

Conclusion

119.

The appeal succeeds on issues 1, 3 and 4; if it had not succeeded on issue 1 it
would have succeeded on issue 2. The FTT has jurisdiction and the reference will
proceed in the FTT.

Judge Elizabeth Cooke

7 August 2026

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.