On 5 June 2025, the First Tier Tribunal (FtT) delivered an extempore judgment in Cellnex Connectivity Solutions Limited v Secretary of State for Housing Communities and Local Government ("Croydon Crown Court") BIR/00CN/EIA/2025/0603 for the imposition of a lease under the Electronic Communication Code (the Code) with unlimited sharing rights for a site on the rooftop of a sensitive court building.
On 11 August 2025, the FtT handed down its written reasons for its decision, providing the industry with much needed guidance on other common terms within telecommunications agreements, such as yield up and forfeiture.
This case was eagerly anticipated by property and telecommunications professionals, as it will form the basis of negotiations for rooftop sites.
In this article, we break down the case, its context and provide key takeaways for landowners and telecommunications operators.
Senior Associate Minerva Christiaan-Rakus and Associate Inge Perry acted for the successful claimant operator, Cellnex Connectivity Solutions Limited.
Case overview: Cellnex v Secretary of State- Croydon Crown Court
In this dispute, Cellnex Connectivity Solutions Limited (Cellnex) sought to acquire rights over the rooftop of the Croydon Crown Court building to install electronic communications apparatus (ECA) as part of the Brighton Mainline Programme (the Programme). The aim of the Programme is to establish an interconnected system of infrastructure, providing seamless connectivity along the Brighton to London trainline.
In principle, Croydon Crown Court did not object to the ECA being installed on its rooftop. However, there were a handful of key terms on which the parties could not agree. These terms are often in dispute when operators seek to obtain new rights or renew agreements under the Code.
This decision provides useful guidance for both operators and site providers when negotiating agreements in respect of both rooftop and greenfield sites.
Key terms in dispute
Sharing rights
Cellnex is a wholesale infrastructure provider (WIP) and a neutral host. It therefore sought the ability to share with an unlimited number of both Code and non-Code operators in order to fulfil its statutory purpose. Croydon Crown Court wanted to limit Cellnex's ability to share, to only three Code operators. It was concerned that sharing would give rise to security concerns (as it functions as a criminal court) and would impose an undue administrative burden upon the court staff.
The FtT concluded that, despite the sensitivity of the building in question and security concerns raised, there was no reason to justify a restriction on the number, or type, of sharers. The FtT ordered that Cellnex may share with an unlimited number of both Code and non-Code operators, subject to the inclusion of specific safeguards due to the sensitivity of the site (i.e. a requirement to adhere to certain security protocols).
In reaching its decision the FtT sited the decision in EE v Stephenson [2021] UKUT 167 (LC), which clarified that the purpose underlying the Code is to ensure that operators can use and exploit sites more flexibly, quickly and cheaply while providing a degree of protection to site provider's interests.
The FtT placed significant emphasis on the fact that Cellnex is a neutral host which does need to share with both Code and non-Code operators in line with government policy. Unsurprisingly, this mirrors the decision in Cornerstone Telecommunications Infrastructure Limited v London & Quadrant Housing trust [2020] UKUT 0282 (LC) ("Maple House"), in which the Upper Tribunal also determined that, because Cornerstone Telecommunications Infrastructure Limited was an infrastructure provider, it needed unlimited sharing rights.
The key difference in, and further clarity added by, this case is the recognition that Cellnex is a neutral host (i.e. it does not provide a network itself) and needs unlimited sharing rights.
Demise and installation rights
Cellnex sought the immediate right to install ECA over a very small portion of the rooftop. It also sought the right to install or relocate ECA to any other unbuilt/vacant area of the rooftop in the future. This would prevent the need for the operator, or its sharers, to make an application under paragraph 20 of the Code for fresh rights if the need arises to install additional ECA, or relocate ECA, outside the tightly demised area.
This term was agreed between the parties shortly before the hearing and was imposed by the FtT as part of the new agreement. The inclusion of this term will alleviate the administrative burden and cost of future upgrades and will allow greater flexibility if ECA needs to be adjusted/relocated during its lifetime.
Although this was ultimately agreed before the hearing, the FtT may in any event have found in Cellnex's favour. Within the recent decision of On Tower UK Limited v AP Wireless II (UK) Limited [2025] UKUT 280 (LC) ("Ewefields"), which involved renewing multiple greenfield agreements, the Upper Tribunal determined that Cellnex (On Tower) should be able to share the Property, the Rights and the ECA with both existing and new sharers (i.e. not just the installation itself).
The FtT explained that this was to avoid the need for operators or their existing / new sharers to constantly seek new rights to upgrade ECA under paragraph 20 of the Code. Therefore, the FtT may have applied the same reasoning had it been asked to determine this term in this case.
Yield up obligations
Croydon Crown Court wanted Cellnex to remove the ECA / decommission the site within six months of the end of the term. Cellnex did not agree to this strict deadline to remove the ECA.
The FtT explained that, when the contractual term ends, the operator has a statutory right to remain by virtue of paragraph 30 of the Code, and Part 6 of the Code already includes provisions for the removal of ECA. Therefore, there was no need to duplicate the statutory mechanism, and in any event the anti-avoidance provisions at paragraph 100 of the Code (i.e. that the Code does apply to contracts between an operator and a site provider) applies to Part 6 which governs decommissioning sites.
This decision provides useful guidance that the FtT does not see the need to duplicate statutory mechanisms, and is conscious of the effect of the anti-avoidance provisions too.
Forfeiture v rolling break clauses for tenant breaches
Code agreements continue statutorily under paragraph 30 of the Code until a site provider serves a notice to quit under paragraph 31 of the Code. The paragraph 31 notice must give 18 months' notice to expire after the date when the agreement could have ended but for the statutory continuation under paragraph 30, i.e. the notice must give at least 18 months' notice and must specify a termination date which falls on or after the (1) contractual term end date (2) contractual break date (if applicable) or (3) date of forfeiture.
The FtT has never been asked to determine whether forfeiture ends the statutory continuation under paragraph 30 (as it does under the Landlord and Tenant Act 1954), and therefore whether a paragraph 31 notice is even necessary. Therefore, this is still up for debate.
Due to this uncertainty, and if forfeiture does not end the statutory continuation, site providers often look to include an 18 month rolling break clause for tenant breach (as Croydon Crown Court did in this case). This is because they can serve the 18 month break notice and paragraph 31 notice together, both giving 18 months' notice to terminate on the break date.
In contrast, operators look to include a forfeiture provision for tenant breach (which Cellnex also did in this case), as is standard in leases, so that they have the benefit of being able to seek relief from forfeiture.
However, site providers argue that this imposes a burden on them, as they cannot serve the paragraph 31 notice (and commence the requisite 18-month notice period) until after forfeiture has already taken place because, realistically, they will not be able to predict the forfeiture date in advance and will therefore not know what date they can validly provide as the termination date in the paragraph 31 notice.
The FtT in this case was not asked to determine whether forfeiture does or does not end statutory continuation and whether a paragraph 31 notice is necessary. However, it did find in favour of Cellnex and did order the inclusion of a forfeiture provision within the agreement. Notably, the FtT commented that it found this approach best minimises loss or damage to the site provider (who in any event may bring a claim for damages or an injunction if the operator tenant is in breach) whilst allowing theoperator business certainty in accordance with its OFCOM directive and in the public interest.
This demonstrates that the FtT considers that a forfeiture clause is an appropriate termination mechanism for operator tenant breaches in the context of a Code agreement.
Key takeaways for landowners and telecommunications operators
The overarching lessons are that the FtT:
- Favours terms which enable operators to fulfil their statutory purpose in line with their OFCOM directives, even on sensitive rooftop sites. However, site providers can be reassured that the FtT will impose these terms subject to site-specific requirements;
- Does not see the benefit of including terms within an agreement which duplicate statutory mechanisms; and
- Is likely to impose terms which minimise the need for further applications to be made for fresh rights under paragraph 20 of the Code in the context of upgrading / relocating ECA.
For tailored advice on telecommunications agreements and site rights, please contact Minerva Christiaan-Rakus or Inge Perry.
FAQs
1. What does the Cellnex v Secretary of State (Croydon Crown Court) tribunal decision mean for rooftop telecom leases in the UK?
This decision clarifies that operators may be granted unlimited sharing rights - even on sensitive sites - subject to appropriate safeguards, setting a precedent for future rooftop lease negotiations.
2. Why was unlimited sharing allowed on a sensitive site like Croydon Crown Court?
The FtT found no sufficient justification to restrict sharing, noting Cellnex's role as a neutral host and wholesale infrastructure provider, and the importance of adhering to government connectivity policy, provided security protocols are followed.
3. What is the significance of forfeiture clauses versus rolling break clauses in Code agreements?
The FtT acknowledged that a forfeiture is compatible for Code agreements, and favoured forfeiture clauses for tenant breaches, allowing operators to seek relief and maintain business certainty, while acknowledging site providers' rights to pursue damages.
4. How does this case impact future upgrades or relocation of telecom equipment on leased sites?
By allowing flexible installation and relocation rights in the first instance, the FtT reduced the need for repeated applications under paragraph 20 of the Code, streamlining future infrastructure upgrades.
Read the original article on GowlingWLG.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
