The Electronic Communications Code in court: Five lessons operators should be acting on now

The Electronic Communications Code is now well established, but recent cases show that important questions about its operation continue to reach the courts.

Taken together, these decisions do more than clarify individual legal issues. They provide valuable insight into how the courts are approaching some of the most important aspects of the Code, from renewals and assignments to termination, site access and operational control.

A common theme emerges. Operators often have greater protection and flexibility than might be assumed, but only where they understand the rights available to them and follow the correct procedures.

Here are five recent decisions and what they mean in practice.

Holding over after a lease expires? You may have more options than you think

EE Limited and Hutchison 3G UK Limited v London Borough of Wandsworth [2026] UKUT 299 (LC)

For operators with legacy agreements, this is one of the most significant recent Code decisions.

The case concerned operators who remained in occupation following the expiry of contracted out leases. Although the operators continued to pay rent and occupy the sites, no replacement agreements had been completed.

The key question was whether the operators occupied as periodic tenants or tenants at will. The Upper Tribunal concluded that they were tenants at will, taking into account, amongst other things, the parties' original intention not to create a periodic tenancy, the landlord's rent demands and the fact that continued occupation reflected rights preserved under the old Code rather than a new tenancy arrangement.

As a result, the operators were entitled to use Part 4 of the Code to seek new Code Agreements.

The Tribunal also confirmed that even a periodic tenant with protection under the Landlord and Tenant Act 1954 may be able to use Part 4. Importantly, the Tribunal recognised that landlords are often unlikely to trigger renewal procedures where that could result in Code valuations replacing more valuable historic arrangements.

What this means for operators

This judgment confirms that allowing a lease to expire does not necessarily weaken an operator's position. Operators with expired or expiring agreements may have more options than expected when seeking new Code rights.

The decision also reinforces the importance of understanding the nature of your occupation. A detailed review of tenure arrangements could unlock rights that might otherwise be overlooked.

Termination: Contractual requirements still matter

On Tower UK Ltd v British Telecommunications PLC [2025] EWCA Civ 844

One of the clearest messages from recent case law is that the Code does not rescue procedural mistakes.

The Court of Appeal confirmed that where a lease serves as a Code Agreement and contains contractual break provisions, those provisions must be properly followed before the statutory termination process can be engaged.

In this case, BT failed to comply with the contractual requirements governing termination. The Court held that it was not enough for a break right merely to be available, it had to be properly exercised. Where a break right is dependent on specified grounds, those grounds must also be stated so that the operator can assess its position.

What this means for operators

Before serving notices or embarking on a termination strategy, operators should ensure they have complied with all relevant contractual procedures.

The judgment is a reminder that favourable Code rights will not compensate for failures to follow the underlying agreement. Careful document review at the outset can avoid costly disputes and delays later.

Assignment: Who holds the rights matters

On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] EWCA Civ 43

This case addressed who is entitled to exercise rights under a Code Agreement where the benefit of those rights has been transferred.

The Court of Appeal confirmed that an operator with the benefit of a Code Agreement can be treated as a party to that agreement for the purposes of Part 5 of the Code, even where it has not assumed primary responsibility for performing the obligations under the agreement.

In reaching that conclusion, the Court rejected arguments that an operator must enter into a direct covenant with the site provider before being treated as a party. Instead, the focus was on who actually holds and exercises the Code rights.

What this means for operators

As telecoms portfolios become increasingly sophisticated and rights are transferred between entities, operators and site providers need a clear understanding of who currently holds the benefit of the Code rights.

The party involved in a renewal, variation or termination exercise may not be the original contracting party. Good records are important.

Site safety: Operators can resist unnecessary controls

On Tower UK Ltd v AP Wireless (II) UK Ltd [2022] UKUT 152 (LC)

This decision considered whether site providers are automatically responsible for the safe operation of telecoms sites located on their land.

The Upper Tribunal found that, in the absence of express contractual provisions, site providers will generally not be responsible for the operation of a telecoms site simply because it is situated on their property.

Where a Code Agreement grants exclusive possession of a site to the operator, responsibility for safety will generally sit with the operator. Similarly, a site provider will not usually become responsible for matters arising from access arrangements unless the agreement expressly provides otherwise.

What this means for operators

The judgment provides useful support for operators negotiating Code Agreements.

Where there is no genuine operational need for additional oversight or control provisions, operators may be able to resist attempts to introduce them.

That said, the Tribunal recognised that some sites may present particular risks. In those circumstances, greater oversight arrangements may still be justified.

Access rights: surveys matter too

Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075

Although not a recent decision, this remains one of the most important authorities on access rights under the Code.

The Court confirmed that operators can seek rights to access land to carry out surveys and inspections before deciding whether to pursue a full installation.

Crucially, an application for interim rights under paragraph 26 does not need to be accompanied by a paragraph 20 application for permanent Code rights. The Court recognised that surveys form an important part of the site acquisition process and may be required before any decision to proceed can be made.

What this means for operators

For operators under pressure to identify and secure suitable sites, the ability to obtain survey access remains a valuable tool.

Where negotiations stall, paragraph 26 can provide a route to secure access and obtain the information needed to assess site viability. Seeking agreement first will usually remain the preferred approach, but the statutory fallback is an important one.

What operators should take from these decisions

While these cases address different aspects of the Code, several common themes emerge.

First, the courts continue to support the policy objectives underpinning the Code. Operators can often rely on wider rights and protections than might initially be assumed, whether when seeking survey access, renewing agreements or exercising Code rights.

Second, process matters. Several of the decisions demonstrate that operators who fail to follow contractual and statutory procedures risk undermining the protections that the Code provides.

Third, good asset management remains critical. Understanding the nature of your occupation, who holds the benefit of Code rights and how agreements operate in practice is becoming increasingly important as portfolios evolve.

Finally, the most successful operators are likely to be those that combine a strong understanding of the Code with robust portfolio governance. The law continues to develop, but many of the risks highlighted by these cases can be managed through good record keeping, regular portfolio reviews and early strategic planning.

Looking ahead

The Code is not a new regime, but the courts continue to shape how it operates in practice.

Recent decisions suggest a continuing willingness to support the Code's objectives while reinforcing the importance of procedural compliance and effective portfolio management. For operators, understanding the detail of the Code is becoming increasingly important, not only when acquiring rights, but throughout the lifecycle of a site.

If you would like to discuss any of these decisions and what they mean for your portfolio, our telecoms team would be happy to help.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.