AP Wireless II (UK) Limited v On Tower UK Limited

This appeal is from a decision of the First-tier Tribunal under Schedule 3A to the Communications Act 2003, known as the Electronic Communications Code or “the Code”. It relates to eight telecommunications mast sites and it will be convenient to refer to this decision by the name of one of them, Lupton Road. There is a phone mast on each site, in use by mobile network providers; in each case the respondent, On Tower UK Limited (“On Tower”), is a party to an agreement which it says conferred Code rights on it and is therefore a Code agreement. On Tower served notices under paragraph 33 of the Code on the appellant, AP Wireless II (UK) Limited (“APW”), requiring it to agree that the existing agreement be terminated and to enter into a new one. The parties failed to agree, and On Tower applied to the FTT for orders under paragraph 34 of the Code, which is within Part 5 of the Code entitled “Termination and Modification of Agreements”.

Once the parties had exchanged pleadings in the FTT it became apparent that they disagreed on what was necessary for the FTT to have jurisdiction to make an order under paragraph 34 of the Code. The FTT was therefore asked to decide some agreed questions of law as preliminary issues. It decided that it had jurisdiction in relation to all eight sites, and from that decision APW appeals.

APW was represented in the appeal by Mr Wayne Clark KC and Mr Tom Morris, and On Tower by Mr Kester Lees KC and Ms Taylor Briggs, and I am grateful to them all.

I refer to the agreed questions of law in the FTT as “the AQLs”, to distinguish them from questions that arose in this Tribunal. Two of the AQLs were:

“1.

As a matter of law, is there a jurisdictional requirement that an operator must be exercising a Code right(s) for the “statutory purposes” (as defined in paragraph 4 of the Code) in order to apply for an order under paragraph 34?

…3(b) At what point(s) in time must the operator prove that it is and/or has been exercising a Code right(s) for such purposes?”

The FTT (Judge David Jackson) said this in answer to the first AQL:

“24.

The answer to the first Agreed Question of law is that as a matter of law, there is a jurisdictional requirement that an operator must be exercising a Code right(s) for the “statutory purposes” (as defined in paragraph 4 of the Code) in order to apply for an order under paragraph 34.

97.

As a matter of law, there is a jurisdictional requirement that an operator must be exercising a Code right(s) for the “statutory purposes” (as defined in paragraph 4 of the Code) in order to apply for an order under paragraph 34.”

In answer to AQL 3(b) the judge said:

“36 … an operator need only show that it is exercising a code right for the statutory purposes at the date of entry into the relevant agreement.

… 98. There is a single “one time” conferral of code rights as at the date of entering into the agreement. Accordingly, an operator need only show that it is exercising a code right for the statutory purposes at the date of entry into the relevant agreement.”

On each AQL the FTT made a decision which it repeated in a summary section later, hence the pairs of paragraphs.

The FTT then decided a number of consequential issues about what a Code operator has to prove in order to show that it “is exercising” Code rights, and concluded that it had jurisdiction in relation to the eight sites. APW has permission from the FTT to appeal its decision on those consequential issues on nine grounds, and On Tower cross-appeals on one ground. Neither party challenged the FTT’s findings at paragraphs 24, 97, 36 and 98.

The appeal was listed for hearing on 9 June 2026. At the start of the hearing I expressed concern about the FTT’s decisions as expressed in those four paragraphs. Paragraph 33 of the Code provides that an application for an order under paragraph 34 may be made by “an operator who is a party to a Code agreement”, once notice has been served and six months have elapsed without agreement. The idea that the FTT only has jurisdiction under Part 5 if the operator is currently exercising Code rights, or that the operator has to be exercising the rights at the date when they were conferred in order for them to be Code rights, was unfamiliar; and it was surprising, in light of the absence of any mention of the exercise of Code rights in paragraph 33. I asked the parties what they thought the FTT meant in the quoted paragraphs.

It rapidly became clear that the parties disagreed, fundamentally, as to what the FTT had decided. For APW Mr Clark KC expressed the view that in both contexts it was essential to show that a right was being exercised. He said that there was a “two-stage test”: in assessing whether or not a right is a Code right the FTT must look both at the purpose of the right when granted, with reference to the terms of the agreement and to the operator’s exercise of Code rights at that date, and again at the point when an application is made under Part 5 it is essential that the right is currently being exercised. Mr Lees KC on the other hand said that there is no need for Code rights to be shown to be “exercised” either at the date of entry into the agreement or at the date when an application is made under Part 5, and expressed the view that that was not what the judge meant.

There are only limited circumstances in which a court or tribunal can raise, let alone decide, an issue that the parties have not raised. One of those circumstances is where the issue goes to jurisdiction (see in particular the decision of the Lands Chamber (the President, Mr Justice Edwin Johnson) in Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC)). If it raises an issue on its own initiative, a court or tribunal must invite the parties to make submissions on them and to decide whether to pursue it by seeking permission to amend their pleadings. I invited the parties to make written submissions on what the judge meant in paragraphs 24, 97, 36 and 98 of his decision and whether he was correct. They did so. In their written submissions both parties applied for permission to appeal the judge’s decision in those paragraphs, On Tower on a provisional basis in case I were to find that the judge meant what APW says he meant, and APW on the ground that the judge did indeed mean what APW says he meant and that he was wrong.

Accordingly, in the paragraphs that follow I look at the legal background to this dispute and then at what happened in the FTT before examining the FTT’s decision in paragraphs 24, 97, 36 and 98 and deciding the two appeals that now arise from those paragraphs.

This decision is self-contained, but readers with an inordinate fondness for telecommunications law may find it helpful to read what I shall call the “Vulcan Arms” decision: On Tower UK Limited v AP Wireless II (UK) Limited (Vulcan Arms) [2026] UKUT 245 (LC), which was an appeal by On Tower from the same decision of the FTT about a ninth site, where the FTT decided that it did not have jurisdiction for reasons that do not arise in this present appeal.

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 following a long process of consultation and negotiation, and replaced the “old Code”, i.e. the previous version of Schedule 3A. The importance of the Code reflects the inescapable role that electronic communications play, whether we like it or not, in business and in virtually everyone’s personal lives. In paragraph 1 of the Supreme Court’s decision in Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2022] UKSC Lady Rose said:

“When the revised Electronic Communications Code with which these appeals are concerned was published in May 2016, the Minister of State for Culture and the Digital Economy described the roll out of digital communications infrastructure as vitally important to citizens across the UK, as digital communications become an ever more essential part of the economic and social fabric of this country. The new Code was, the Minister said, intended to “provide a robust platform to enable long-term investment and development of digital communications infrastructure in the 21st Century”: see the Foreword to the Government’s consultation response “A New Electronic Communications Code”.

Whereas under the old Code the consideration paid by the operator was a market rent, the Code introduced a new basis of consideration calculated on an assumption that is favourable to Code operators. That has made landowners reluctant to enter into Code agreements, and it has led to particularly persistent litigation between the two parties to this appeal. APW is a “site aggregator” and owns a great many telecommunications sites, holding in most cases a long lease of just the site from the freeholder of a larger property; On Tower is a wholesale infrastructure provider (a “WIP”), providing masts and other equipment (often referred to as “ECA”, electronic communications apparatus) which mobile network operators (“MNOs”) can use.

As the Tribunal explained in the Vulcan Arms decision at paragraphs 8 and 9, On Tower has had the Code applied to it by a direction from OFCOM under section 106 of the 2003 Act; so On Tower can hold Code rights, and the consideration it pays for the land it holds under Code agreements is the favourable rate prescribed by the Code. However, the consideration received by On Tower from its customers is not restricted by the provisions of the Code. That is because paragraph 108 of the Code provides that electronic communications equipment is not “land” for the purpose of the Code and, since Code rights are defined in paragraph 3 of the Code as rights over land, the right to put antennae on a mast (for example) is therefore not a Code right.

Accordingly, On Tower has a privilege that APW does not have. It has that privilege, as an infrastructure provider, because of the expenditure and resources required to provide and maintain infrastructure; the idea is that unlike the provider of a bare site an infrastructure provider will typically incur capital expenditure – in particular, the cost of building a mast – and needs a market rent.

APW’s arguments in this appeal are expressly aimed at preventing a particular mischief: the purported infrastructure provider who does not in fact invest in a site, who owns no ECA on the site but simply holds, yet receives a market rent as a provider of infrastructure rather than consideration calculated under the Code. The jurisdictional requirements for which APW argues are, it says, necessary to prevent an infrastructure provider from turning to “land banking”. Specifically, APW does not accept that On Tower owns the electronic communications apparatus (“ECA”) masts on these eight sites; it says that On Tower has not made the investment in the ECA on these sites that justifies its receipt of a market rent for them. That being the case, says APW, On Tower is not a party to a Code agreement and the FTT has no jurisdiction under paragraph 34 of the Code.

Fundamental to the Code is the status of an “operator”, defined in paragraph 2 of the Code:

“In this code “operator” means—

(a)

where this code is applied in any person's case by a direction under section 106, that person …”

Section 106 of the 2003 Act provides:

“(1)

In this Chapter “the electronic communications code” means the code set out in Schedule 3A. …

(3)

The electronic communications code shall have effect—

(a)…in the case of a person to whom it is applied by a direction given by OFCOM …

(4)

The only purposes for which the electronic communications code may be applied in a person’s case by a direction under this section are—

(a)

the purposes of the provision by him of an electronic communications network; or

(b)

the purposes of the provision by him of a system of infrastructure which he is making available, or proposing to make available, for use by providers of electronic communications networks for the purposes of the provision by them of their networks.

…”

The Code defines Code rights in paragraph 3:

“For the purposes of this code a “code right”, in relation to an operator and any land, is a right for the statutory purposes—

(a)

to install electronic communications apparatus on, under or over the land,

… etc…[there follows a list of rights (b) to (i)]”

Paragraph 4 defines the statutory purposes:

“(1)

In this code "the statutory purposes" , in relation to an operator, means—

…

(b)

in relation to rights other than sharing rights—

(i)

the purposes of providing the operator's network, or

(ii)

the purposes of providing an infrastructure system.”

The Code makes provision for Code rights to be imposed on landowners in certain circumstances where they cannot be conferred by agreement.

Part 5 of the Code, paragraphs 29 to 35, is entitled “Termination and Modification of Agreements.” Paragraph 30 provides that when a Code right ceases to be exercisable, for example when the agreement that conferred it (a “Code agreement”) expires by effluxion of time, nevertheless the agreement continues so that the operator can continue to exercise the Code rights and the site provider continues to be bound by them.

Central to this appeal is paragraph 33. The relevant provisions of paragraph 33 are as follows, and I have emboldened the wording that is at the heart of this appeal:

“(1)

An operator or site provider who is a party to a code agreement by which a code right is conferred by or otherwise binds the site provider may, by notice in accordance with this paragraph, require the other party to the agreement to agree that—

(a)

the code agreement should have effect with modified terms,

… or

(d)

the existing code agreement should be terminated and a new agreement should have effect between the parties which—

(i)

confers a code right on the operator, or

(ii)

provides for a code right to bind the site provider.”

If no agreement has been reached six months after that notice was given, paragraph 33(5) provides that either the operator or the site provider may apply to the First-tier Tribunal for an order under paragraph 34; paragraph 34 sets out the orders the FTT may make, including the continuation of the existing agreement, or the termination of the existing agreement and an order that the parties enter a new Code agreement.

Obviously, an effective notice under paragraph 33 can only be served by “a party to a code agreement”, and the FTT has jurisdiction to make an order under paragraph 34 only on the application of “an operator” who is “a party to a code agreement”.

This appeal arises from On Tower’s application to the FTT under paragraph 33(5) of the Code in relation to 13 sites on which the agreement between the parties has expired. Some of the agreements had been made between On Tower and APW whereas in other cases On Tower was the assignee operator under an agreement made originally between APW (or its predecessor in title) and an MNO. Some were entered into before the Code came into force and some after. It is not in dispute that there is a mast on each of the sites and that the mast is used by On Tower’s customers who are MNOs.

The application was withdrawn in relation to four of the 13 sites. This appeal relates to only eight of the remaining nine sites because the FTT’s decision in relation to the site known as Vulcan Arms has been the subject of a different appeal, as I mentioned above.

I have to consider in some detail the positions of the parties as they developed in the course of the proceedings in the FTT, because On Tower says that the way the FTT expressed its decision was the result of the way the case was argued.

In its statement of case in the FTT On Tower stated that each of the agreements (defined in the statement of case as “the Existing Agreements”) was a Code agreement, continued under paragraph 30 of the Code following its expiry, and in each case it sought the termination of the existing agreement and a new agreement on the terms set out in a draft.

APW’s statement of case said this, under the heading “APW’s position as to the jurisdiction of the FTT to consider the references”:

“8.

On Tower is put to proof that in respect of each and every Site forming the subject matter of the References it is exercising the Code rights conferred by the Existing Agreements for the “statutory purposes”, namely, that it is providing a system of infrastructure as defined within Para 7 of the Code.

9.

In particular APW puts On Tower to proof that it has ownership of all passive ECA (that is to say all ECA other than the active infrastructure owned by any MNO) on any of the Sites.

…

13.

It is averred that on the true interpretation of the Code an operator who is an infrastructure provider such as On Tower cannot be said to be exercising Code Rights for the “statutory purposes” as defined in Para 6 of the Code where it is not providing any ECA of its own.

14.

Absent ownership of the passive infrastructure at any of the Sites, On Tower is in exactly the same position as APW, namely, simply that of a site provider.

15.

Accordingly, it is denied that the Tribunal has any jurisdiction to determine the References unless On Tower can establish that it is exercising the Code rights for the “statutory purposes.”

APW’s statement of case went on to say why On Tower could not show that it was exercising Code rights on the sites, in particular because it did not own the ECA on them, and it also raised a number of further arguments about the various sites, about occupation, the status of some of the existing agreements and service of notices.

The FTT gave directions for the parties to make written submissions and then to agree a list of questions of law for it to decide as preliminary issues.

In its written submissions dated 3 June 2025 APW expanded on what it said in its statement of case. It said:

“13.

On Tower is required to demonstrate requisite ownership of the ECA on each site in each of those references at the following times.

(1)

The date of entry into the agreement. …

(2)

The date of the term of the agreement vesting in On Tower pursuant to any assignment of the relevant agreement to On Tower.

(3)

The date of expiry of the contractual term. …

(4)

The date of service of the paragraph 33 notice.

(5)

The date of the issuing of the Reference.

14.

APW’s position is that the references in question must be struck out if On Tower cannot show at any of those dates that the Code applied to the agreement. If it did not the Tribunal has no jurisdiction.

On Tower in its written submissions dated 23 June 2025 responded:

“4.

APW’s written submissions proceed on the wrong assumption that there is a jurisdictional “statutory purposes” test, and that OT must establish – by reference to no fewer than five different dates – that it (and its predecessors in title) were exercising rights under the Existing Agreements for the “statutory purposes”. If OT does not do so for any one of APW’s dates, it is apparently locked out of renewal under Part 5 of the Code and possibly precluded from ever obtaining Code rights in the future.

5.

This is a rather startling proposition. It is one that (i) has not been considered by the courts or the Tribunal previously, (ii) finds no support in the words of the Code, (iii) runs counter to the Parliamentary aims underpinning the legislation, and (iv) misunderstands altogether how the Code is and was always intended to work.

…by virtue of paragraph 33(1), in order to give a paragraph 33 notice, a person must be: (i) an operator (or a site provider), and (ii) a “party to a code agreement by which a code right is conferred by or otherwise binds the site provider.” Only one code right has to be conferred by the written agreement and there is no further statutory requirement for it be exercised at the time of renewal (or at any other time).”

On Tower’s written submissions went on to challenge APW’s argument that in order to satisfy the test that APW proposed (which On Tower said was not required) On Tower had to demonstrate ownership of the ECA at each of the sites. Nevertheless, it argued that it was the owner of the ECA so that if that was the test, and if that was the only way to pass it, it passed.

The parties were directed to agree a list of issues of law and produced the AQLs as follows:

“1.

As a matter of law, is there a jurisdictional requirement that an operator must be exercising a Code right(s) for the “statutory purposes” (as defined in paragraph 4 of the Code) in order to apply for an order under paragraph 34?

2.

If the answer to (2) is no, are the “statutory purposes” nevertheless relevant to a reference under paragraph 33?

3.

If the answer to either (1) or (2) is yes, then:

(a)

What is OT required to prove in order to satisfy the Tribunal that it is and/or was exercising a Code right(s) for such purposes? In particular:

i.

Is OT required to prove ownership of some or all of the passive infrastructure at each of the Sites or is it sufficient that OT can prove that it is and/or has been “maintaining” an infrastructure system?

ii.

What is meant by “maintaining such a system [i.e. an infrastructure system]” within paragraph 7(2) of the Code?

iii.

What is the relevance (if any) of the status of occupation of a third party at any of the relevant sites to the “statutory purposes” issue?

iv.

Does the occupation of any such third party affect the question as to whether or not OT can be said to have a Code agreement within the protection of the Code? If so, how?

(b)

At what point(s) in time must the operator prove that it is and/or has been exercising a Code right(s) for such purposes?

(c)

In particular, is OT required to show that it has been exercising a Code right(s) for such purposes on any or all of the following dates:

i.

the date of entry into the relevant agreement;

ii.

the date of the term of the agreement vesting in OTUK pursuant to any assignment of the relevant agreement to OTUK;

iii.

the date of expiry of the contractual term of the relevant agreement;

iv.

the date of service of the paragraph 33 notice;

v.

the date of the issuing of the reference; and

vi.

the date of trial.”

In their skeleton argument in the FTT Mr Clark KC and Mr Morris set out their position on the AQLs as follows:

“1.

Yes.

2.

The relevance can only be that rights have to be sought for the statutory purposes. If none are being exercised no Code rights are available.

3.

(a) Ownership of ECA and the exercise of the rights for the statutory purposes. (i) To be “maintaining” an infrastructure system, OT must prove ownership of some or all of the passive infrastructure at each site.

(ii)

“Maintaining such a system” means continuing a state of affairs whereby the established system is kept in place.

(iii)

The presence on each site of a third party is relevant to whether or not OT can show that it, rather than that or those parties, is exercising a Code right for the statutory purposes.

(iv)

The occupation of third parties thus affects whether or not OT itself is exercising a Code right for the statutory purposes.

(b)

All of the times set out in paragraph 3(c) of the list of legal issues.

(c)

Yes.”

On Tower was represented before the FTT by Mr Justin Kitson KC and Ms Taylor Briggs. Their skeleton argument characterised the first of the agreed issues of law as follows:

“10.

Whether or not there is an additional jurisdictional requirement in Part 5 for operators to show that they are – and their predecessors in title have been – exercising Code Rights for the “statutory purposes” is a novel argument. APW is asking the Tribunal to imply and impose the additional jurisdictional “test”, notwithstanding (i) no such test having been expressly provided for in the Code and there being nothing in the language of the Code to support its implication; (ii) there being nothing to justify the implication of the test pursuant to a purposive construction of the Code; and (iii) the absence of any decisions, whether of the Upper Tribunal or the courts, considering the point.”

Mr Kitson KC and Ms Briggs went on to argue that in asserting that On Tower must prove that it wasexercising Code rights for the statutory purposes, APW was importing into the Code the test for renewal of business leases under the Landlord and Tenant Act 1954, where a tenant must prove that it is occupying the premises for business purposes. There is no such test, they argued, in paragraph 33.

They then challenged APW’s arguments on the assumption that APW’s requirement was correct. They argued that even if On Tower had to show that it was exercising Code rights, it did not have to prove that it owned the ECA on each site, because it could be maintaining infrastructure that it did not own. They pointed out that many of the issues that APW was raising were relevant, not to jurisdiction, but to whether an agreement should be ordered and what its terms should be.

The appeal bundle contains each party’s notes of what was said in opening, and in evidence, on the first day of the hearing – and they appear to be very good notes since they are very similar to each other. I need not say much about the hearing save to stress that Mr Kitson KC in opening addressed the first preliminary issue of law and referred to it as the “jurisdictional issue”. He said – and the quotation is from the note, not from a recording, so may not be exact – “the whole Code is premised on a single conferral of a Code right that happens as one moment in time, once you have a Code right, you are in the Code and can apply for a renewal of that Code right/rights. And the way Code approaches this – single conferral – doesn’t require factual examination. What matters is there has been a conferral of Code rights which brings agreement into the Code.”

Paragraphs 19 to 36 of the FTT’s decision were about the first AQL and about question 3(b), and we have seen how the judge answered them.

The judge then went on to decide a number of further issues in response to AQL 3(a), to which I refer as the “consequential findings” since they all flowed from the answer to AQL 1. The judge decided, for example, that it was not necessary for On Tower to show that it owned infrastructure on a site in order to show that it was exercising Code rights there, since the provision of an infrastructure system could include establishing or maintaining such a system. He made findings of fact about the ownership of the masts on the sites, and about whether On Tower was maintaining ECA on the sites. So far as eight of the nine sites were concerned the judge concluded that On Tower was exercising Code rights because it was maintaining ECA on the sites, and so the FTT did have jurisdiction.

APW appeals on a number of grounds, with the permission of the FTT, against the consequential findings.

On Tower cross-appeals on the ground that because of the way APW’s case was expressed in its statement of case in the FTT it was estopped from denying, later in the proceedings, that On Tower was a party to a Code right.

I explained in paragraph 8 above why the judge’s findings about the exercise of Code rights troubled me, even though neither party challenged them. On 9 June 2026 I adjourned the hearing of the appeal and directed the parties to make written submissions on the following questions (“the UT questions”):

“(1)

What did the Judge decide at paragraphs 24, 36, 97 and 98 of the Decision in relation to what the parties have called the “Conferral Date Test”?

(2)

Was the Judge’s decision on those matters correct?

(3)

To the extent that it was not correct, what is the correct test to apply in order to determine whether an agreement is a Code Agreement?

(4)

[Is it the case that] …in every case where an operator wants a new agreement it must prove that it is currently exercising, at the date of renewal, one or more Code rights for the statutory purposes? If so, why?

Looking again at those questions, formulated as they were in haste in the course of the hearing, paragraph (1) should have stopped after the word “Decision”. Questions 1 and 2 were intended to ask the parties what the judge meant in his decisions at paragraphs 24, 97, 36 and 98, and whether they thought he was right.

In those directions I also gave the parties permission to amend their pleadings in the appeal if they wished to do so, on a provisional basis if necessary, with the intention that On Tower should be able to seek permission to appeal the judge’s findings if I were to find that they did not mean what On Tower says they meant.

In the event both parties in their written submissions ask permission to appeal the judge’s findings.

To explain how that comes about I now turn to the first two questions: what did the judge mean in the four paragraphs, and was he right?

It will be helpful at this point to set out the judge’s reasoning, at his paragraph 19 to 24, because On Tower relies upon that reasoning in saying what the judge decided at paragraph 24; I also summarise the reasoning that preceded paragraph 36.

“A party to a code agreement

19.

The Claimant seeks renewal of its agreements at all 9 sites under Part 5 of the Code: “Modification and Termination of Agreements”. Paragraph 33 of Part 5 explains “How may a party to a code agreement require a change to the terms of an agreement which has expired?”. The process begins with a Notice under paragraph 33(1):

“An operator or site provider who is a party to a code agreement by which a code right is conferred by or otherwise binds the site provider may, by notice in accordance with this paragraph, require the other party to the agreement to…”

The Respondent’s case is that the Claimant is not “a party to a code agreement”.

20.

The meaning of “a code agreement” is explained in Paragraph 29 of Part 5 which provides:

(1)

This Part of this code applies to an agreement under Part 2 of this code …. (5) An agreement to which this Part of this code applies is referred to in this code as a “code agreement”.

21.

A code agreement is therefore an agreement under Part 2 of the Code. Paragraph 9(1) of Part 2 provides that:

“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.”

Agreements under Part 2 are therefore agreements which confer code rights. The definition of a code right is contained in Paragraph 3:

“For the purposes of this code a “code right”, in relation to an operator and any land, is a right for the statutory purposes— “

22.

The renewal process under Part 5 of the Code can only be commenced by a Paragraph 33 notice given by an operator who is a “a party to a code agreement”. A code agreement is an agreement under Part 2 of the Code conferring a “code right” i.e. a right for the “statutory purposes”.

23.

If, following expiry of the period of 6 months after giving the Paragraph 33 Notice, the parties have not reached agreement the Claimant may make application to the Tribunal under Paragraph 33(5). In the present references the Claimant seeks orders under paragraph 34(6) which provides:

“The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

(a)

confers a code right on the operator, or

(b)

provides for a code right to bind the site provider.

Accordingly, the Tribunal may terminate “the code agreement” and order the parties to enter into a new agreement which confers “a code right” i.e. a right for the “statutory purposes”.

24.

The answer to the first Agreed Question of law is that as a matter of law, there is a jurisdictional requirement that an operator must be exercising a Code right(s) for the “statutory purposes” (as defined in paragraph 4 of the Code) in order to apply for an order under paragraph 34. Under those circumstances the second Agreed Question of Law does not arise.”

In answer to question 3(b) and (c) the judge set out APW’s argument that On Tower had to show that it was exercising Code rights at six different times in order to show that it was now a party to a Code agreement for the purposes of paragraph 33. He explained Mr Clark KC’s argument that an agreement can drop in and out of Code protection depending on whether Code rights are being exercised, with the proviso that in all cases if an agreement is not a Code agreement at its inception it can never become one. He characterised Mr Kitson KC’s case as “once a Code agreement always a Code agreement.” After some discussion he concluded that Mr Kitson KC was right. At paragraph 31 he said:

“I prefer the construction advanced by Mr Kitson. Paragraph 9 is, on my reading, clear. There is a single “one time” conferral of code rights at the date a code agreement is entered into. Paragraph 12 confirms that interpretation, in that the exercise of code rights is contingent upon conferral. Finally, Paragraph 30 provides for the continuation of code rights beyond expiry of the contractual term of a code agreement. …

36.

Accordingly in answer to Agreed Questions of Law 3b and 3c an operator need only show that it is exercising a code right for the statutory purposes at the date of entry into the relevant agreement.”

On Tower points to its position in the FTT, which was that there is no need to prove that rights are being exercised in order for the FTT to have jurisdiction to make an order under paragraph 34. It argued before the FTT that Code rights must be conferred “for the statutory purposes”, and that there is no need to prove that rights are being exercised or that they were being exercised at the date of the agreement. Once a Code agreement, always a Code agreement. On Tower then points to the reasoning in paragraphs 19 to 23 of the FTT’s decision, where there is no mention of rights being “exercised”. Mr Lees KC says “The Judge’s reasoning was – therefore – on all fours with OT’s submissions below. OT regarded itself as having won that issue.”

Mr Lees KC accepts that the inclusion of the word “exercising” at paragraph 24 is puzzling at first blush, but says:

“its usage is explicable by reference to [the pleadings and written submissions], as each of these documents framed the First Preliminary Issue in terms of whether Code rights were being exercised.

26.

OT submits that, when one has regard to the underlying analysis, the Judge was plainly doing nothing more than articulating the common-sense proposition (advanced by OT below and, again, in these written submissions) that, for the Tribunal to have jurisdiction under Part 5, it must be satisfied that the operator is a party to a “Code agreement” and, therefore, that at least one of the rights granted by that agreement was granted for the “statutory purposes”.

27.

In OT’s submission, the Judge was using the word “exercising” as a shorthand for evidencing “purpose”. On a true reading of [24], the Judge was simply stating that the Tribunal will lack jurisdiction where rights (to install equipment etc) have not been granted “for” the statutory purposes and so the agreement which the operator seeks to renew is not, in fact, a Code agreement.”

As to paragraph 36, says Mr Lees KC, the judge was there exclusively concerned with timing, and he accepted On Tower’s position that there is a single conferral of Code rights. But the judge was not creating a test requiring an operator to prove that they were literally exercising Code rights at the date of conferral, since that would be impossible on a bare site. There is no “two-stage test” as Mr Clark KC put it at the hearing on 9 June 2026, and no sign of one anywhere in the judge’s decision.

Mr Clark KC says that the judge meant what he said. At paragraph 24 he concluded that there was a jurisdictional requirement for Code rights to be shown to be exercised. Furthermore, for there to have been a Code agreement at the conferral date there must be an agreement the terms of which confer Code rights and those rights must have been at that date exercised for the statutory purposes.

Hence the rest of the FTT’s decision, in which the judge “conducted a highly granular, fact-specific inquiry into the operational reality of the parties’ relationships”. He looked at whether rights were being exercised, both at the conferral date and at present. If all that was required for jurisdiction under Part 5 was an objective consideration of the terms of the Code agreements in order to ascertain that they conferred Code rights on the operator, the rest of the FTT’s decision would have been unnecessary.

Mr Clark KC rejected On Tower’s attempt to read down the reference to the exercise of rights in paragraphs 24 and 36. To suggest that the word “exercising” in paragraph 36 is a shorthand for a way of evidencing purpose does not make sense.

I agree with Mr Clark KC. The judge’s use of the word “exercising” in paragraphs 24 and 36 was deliberate and is to be construed literally.

It was clear from APW’s statement of case in the FTT that it was arguing for a jurisdiction requirement that involved proof that Code rights were being exercised. It introduced that requirement by putting On Tower to proof that it was exercising Code rights on the sites, and went on to say that the FTT did not have jurisdiction under Part 5 unless the operator was exercising Code rights.

That position was then developed in APW’s written submissions: it said that the operator had to show that it was exercising its rights at various times, on five occasions according to APW’s written submissions and on six in the AQLs, failing which the Code agreement would cease to be protected and the operator would not then be “a party to a Code agreement” which is the explicit requirement for jurisdiction in paragraph 33. Again the submission is about jurisdiction and the crucial issue is the exercise of rights.

On Tower argued that it did not have to prove that it was exercising Code rights, although it also argued that it could do so if that really was required.

So the issue before the judge in the first AQL, although described at various points by both parties as an issue about “statutory purposes”, was whether On Tower had to prove that it was exercising Code rights in order for the FTT to have jurisdiction under Part 5 and, if so, at what times it was required to prove that it was doing so. There was no need for the judge to decide in principle whether Code rights have to be conferred for the statutory purposes; that was not in dispute.

It is therefore impossible not to read the judge’s findings literally. It makes no sense at all to read paragraph 24 as a statement that the operator need only show that its rights were conferred for the statutory purposes, but that one way it can show that is to demonstrate that it is currently exercising its rights for those purposes. The question he was asked to resolve was whether there was a jurisdictional requirement for On Tower to show that it was exercising the rights. At paragraph 24 the judge answered that question by saying in terms that there was.

I agree with Mr Clark KC that On Tower’s interpretation of what the judge was saying – that there is no need to prove that rights are being exercised but that is one way of showing that they were granted for the statutory purposes – is not a possible construction of the judge’s paragraph 24.

At paragraph 31 the judge accepted Mr Kitson KC’s argument that there is a one-time conferral of Code rights – once a Code agreement always a Code agreement – and at paragraph 36 he decided that the operator need only show that it was exercising Code rights at the date of conferral of the agreement. Again the word “exercising” cannot be an accident because the question before the judge was “(b) At what point(s) in time must the operator prove that it is and/or has been exercising a Code right(s) for such purposes?” He was asked to decide about exercising and he did so.

Importantly, and as Mr Clark KC says, the judge went on to decide in relation to the sites in question whether Code rights had been exercised on them at the conferral date, and whether On Tower was currently exercising Code rights and then reached a conclusion about jurisdiction. If he had not meant to decide that the exercise of rights was crucial to jurisdiction he would not then have made decisions about the exercise of rights and reached a conclusion about jurisdiction.

I conclude that at paragraph 24 and 97 the FTT held that it has jurisdiction under Part 5 only if the operator can show that it is exercising Code rights on the site in question. At paragraph 36 and 98 the FTT decided that an agreement is a Code agreement if the rights conferred were being exercised at the date of conferral. And despite saying in paragraph 36 that the operator need only show that rights are being exercised at the conferral date, he went on to make findings about whether On Tower was exercising Code rights both at the date when it entered into the agreements and at the present time; so he was requiring “the exercise of Code rights” to be demonstrated twice, once at the conferral date and then again at the time when it applies for an order under Part 5.

On Tower of course says that the judge was right if he meant what On Tower says he meant. Otherwise, On Tower’s position is that the judge was wrong. Despite its apparent agreement, in its skeleton argument in the appeal, that the operator must show when it applies under Part 5 that it is currently exercising Code rights on the site, On Tower reiterates its position held consistently up to and including the hearing that the FTT has jurisdiction under Part 5 if the applicant is a party to a Code agreement; and that a Code agreement is one that confers one or more of the rights listed in paragraph 3 of the Code, for the statutory purposes as discerned from the agreement (with factual evidence of context if required where the agreement is unclear). There is no other requirement, no two-stage test, and no need for proof that rights are or were being exercised at any point. It applies for permission to appeal on the following grounds:

“(a)

as a matter of law, there is no separate jurisdictional requirement that an operator was “exercising” the Code rights for statutory purposes as at the entry into the Code agreement (the renewal of which is sought by Part 5 proceedings) and/or as at the date of those renewal proceedings being heard. All an operator has to show is that it is a party to a Code agreement and it is seeking a renewal of Code rights for statutory purposes;

(b)

as a matter of law, there is no two-stage test of (i) purpose, and (ii) exercise; only purpose is relevant; and/or

(c)

the Judge failed to give any or any adequate reasons to justify such a conclusion.”

APW also says that the judge was wrong; the judge’s finding that a Code right must be being exercised at the date it is conferred, for which APW argued in the FTT, is “illogical and not justified by the statutory provisions”, being obviously impossible for a virgin site. Mr Clark KC maintains nevertheless that there is an evidential gateway to jurisdiction. It applies for permission to appeal on the following grounds:

“Ground 1A: The Judge erred as a matter of law in his formulation of the jurisdictional gateway test for determining whether an agreement is a Code agreement and/or whether it qualifies for renewal under Part 5 of the Code.

(1)

The Judge erred in law in concluding that the jurisdictional test (whether at the Conferral Date or on a Part 5 renewal) required an operator to prove that it was actively exercising Code rights at the relevant date.

(2)

The Judge ought instead to have held that the jurisdictional gateway is a test of purpose requiring an operator to establish:

(i)

That the terms of the agreement provide for the conferral of rights for the statutory purposes; and

(ii)

That there is a genuine, site-specific, and fact-based intention and capability on the part of the operator to provide or maintain an electronic communications network or an infrastructure system under the agreement.

(3)

The Judge further erred in failing to conclude that this evidential test is an ongoing jurisdictional requirement that must be satisfied at the date of any Part 5 renewal hearing.

(4)

Had the Judge applied the correct test, he ought to have found on the evidence that the OT had failed to satisfy the evidential test at the relevant dates because:

(i)

At the Conferral Date of the Existing Agreements, neither OT nor Arqiva owned, controlled, or had any physical or operational relationship to the passive or active electronic communications apparatus on the sites and thus could not be said to be providing or maintain an infrastructure system; and

(ii)

At the date of the renewal hearing, OT had no site-specific, fact-based intention or capability to provide or maintain an infrastructure system on the land.”

There is also a ground 1B, which I will come back to later.

On Tower argues that if the judge meant what he said about “exercising” rights then he was wrong. APW concedes that the judge was wrong to require the operator to show that it was exercising the rights, either at the conferral date or at the time of renewal. There is therefore a consensus that the judge’s decisions in paragraphs 24, 36, 97 and 98 should be set aside – although of course there is no consensus about what he should have decided.

I would add that On Tower would have been entitled in any event to have the decision at paragraph 24, and the reference to the exercise of rights in paragraph 36, set aside on the basis that the judge’s reasoning did not explain what he decided about the exercise of rights. The judge had heard detailed and focussed argument about whether there was a jurisdictional requirement that On Tower prove that it was currently exercising Code rights and decided that there was, but his explanation in paragraphs 19 to 23 (set out above at paragraph 51) did not mention the exercise of rights. The conclusion that the operator must prove that it was exercising Code rights is therefore unexplained; in particular, there was no engagement with On Tower’s consistent position that there was no jurisdictional requirement to show that rights were being exercised. And paragraph 36 is, as On Tower said, concerned with time; the requirement to prove exercise is stated, but unexplained. Furthermore, the judge’s examination of evidence about the exercise of Code rights both at the conferral date and at the time of renewal, despite his statement in paragraph 36 that exercise at the conferral date is sufficient, is unexplained.

Accordingly, the judge’s decisions at paragraphs 24, 36, 97 and 98 are set aside, both because the parties agree that they are wrong in law, and because they are unexplained insofar as they are about the exercise of Code rights.

It is not in anyone’s interests that I set aside the judge’s decisions in those paragraphs and stop there. And the Tribunal cannot exactly substitute its own decision, because the first of the FTT questions is a closed question; it can only be answered “yes” or “no”, and it is agreed that the answer is “no” (which means that questions 3(b) and (c) do not arise). For the Tribunal to give that answer would be pointless because it would leave unresolved the issue as to whether the FTT has jurisdiction to make orders under paragraph 34 in relation to these eight sites.

Therefore, for the judge’s answers to FTT questions 1, 3(b) and 3(c) I am going to substitute the Tribunal’s answer to the open question: “what does an operator have to prove in order to show that the FTT has jurisdiction to make an order under paragraph 34?” or, simply and better, “what is required for the FTT to have jurisdiction to make an order under paragraph 34?”. That is the question both parties have, very helpfully, answered in their written submissions in answer to UT questions 3 and 4, and that is the question that has to be answered in order to progress these eight references. I make a few preliminary remarks before turning to the parties’ arguments.

The question is about jurisdiction, that is, the legal power to make a decision. It is not unusual for a statute to set up a jurisdiction requirement which must be met, or a gateway which must be passed, in order for a court or tribunal to have the power to make a discretionary or evaluative decision. Section 84 of the Law of Property Act 1925 is a familiar example in this Tribunal, where the statute sets up quite complex requirements which must be satisfied before the Tribunal has a discretion to modify or discharge a restrictive covenant. Section 43 of the Housing and Planning Act 2016 gives the FTT a discretion to make a rent repayment order, provided that certain requirements are satisfied – the giving of the correct notice, the making of an application in time, and the FTT being satisfied, beyond reasonable doubt, that an offence has been committed. A tenant may apply to have a market rent determined under section 14 of the Housing Act 1987 only if they make an application to the FTT before the date when the landlord’s proposed new rent is payable.

Many other examples could be given, some simple, some more complex. The word “jurisdiction” may not be used, but such provisions are about jurisdiction because they confer a discretion only if certain conditions are met. Where there are such conditions or requirements they are set out in the statute. It should go without saying that the existence of jurisdiction (where those conditions are met) does not make an outcome inevitable; it merely gives the court or tribunal power to decide what the outcome should be.

It is not in dispute that the requirements for the FTT to have jurisdiction to make one of the orders set out in paragraph 34 are set out in paragraph 33 of the Code.

The requirements are that an application is made after notice has been served by “an operator or site provider who is a party to a Code agreement”, and six months have elapsed without agreement. The parties disagree about the meaning of “an operator or site provider who is a party to a Code agreement”.

It is worth setting out here what lies on the other side of the jurisdictional gateway, namely the discretion conferred by paragraph 34:

“34.

(1)  This paragraph sets out the orders that the court may make on an application under paragraph … 33(5).

(2)

The court may order that the operator may continue to exercise the existing code right in accordance with the existing code agreement for such period as may be specified in the order (so that the code agreement has effect accordingly).

(3)

The court may order the modification of the terms of the code agreement relating to the existing code right.

(4)

Where under the code agreement more than one code right is conferred by or otherwise binds the site provider, the court may order the modification of the terms of the code agreement so that it no longer provides for an existing code right to be conferred by or otherwise bind the site provider.

(5)

The court may order the terms of the code agreement relating to the existing code right to be modified so that—

(a)

it confers an additional code right on the operator, or

(b)

it provides that the site provider is otherwise bound by an additional code right.

(6)

The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

(a)

confers a code right on the operator, or

(b)

provides for a code right to bind the site provider.

(7)

The existing code agreement continues until the new agreement takes effect.

(8)

This code applies to the new agreement as if it were an agreement under Part 2 of this code.

(9)

The terms conferring or providing for an additional code right under sub-paragraph (5), and the terms of a new agreement under sub-paragraph (6), are to be such as are agreed between the operator and the site provider.

(10)

If the operator and the site provider are unable to agree on the terms, the court must on an application by either party make an order specifying those terms.

…

(13)

In determining which order to make under this paragraph, the court must have regard to all the circumstances of the case, and in particular to—

(a)

the operator's business and technical needs,

(b)

the use that the site provider is making of the land to which the existing code agreement relates,

(c)

any duties imposed on the site provider by an enactment, and

(d)

the amount of consideration payable by the operator to the site provider under the existing code agreement.

…”

Thus there is no automatic outcome when the FTT has jurisdiction under paragraph 34. There is a choice of orders that can be made and the making of an order is not inevitable. The outcome will depend on consideration of all the circumstances of the case and in particular the matters set out in paragraph 34(13).

With that in mind, I turn to the parties’ answers to the question the Tribunal now has to ask in order to substitute its decision for the judge’s answer to the first AQL, namely “what is required for the FTT to have jurisdiction to make an order under paragraph 34?”.

On Tower’s written submissions say this:

“3.

OT submits that the essential question before this Tribunal is this: what is an operator required to prove on a reference under paragraph 33 of the Code?

4.

OT submits that the answer to that question is found in paragraphs 3 and 33 alone, and that an operator seeking to renew an agreement need only prove that:-

(a)

they are an “operator” (within the meaning of paragraph 2);

(b)

they are a party to a Code agreement;

(c)

they have served a notice on the other party to the agreement; and 1 (d) the notice complies with paragraph 33(2), (3), and (3A).

5.

The subject matter of this appeal is (b): what must an operator (especially a WIP such as OT) evidence to show that it is a party to a Code agreement?”

Mr Lees KC goes on to say that in order to prove that the existing agreement is a Code agreement the operator has to show that the rights it conferred are Code rights. On Tower’s position is that a right is a Code right if (a) it is one of the rights in the list in paragraph 3 and (b) it was conferred on an operator (meaning a person to whom the Code has been applied under section 106) “for the statutory purposes”.

Whether the rights were granted for the statutory purposes is ascertained objectively and will usually be obvious from the terms of the agreement and the context. Thus the right to build a mast, conferred on an operator, is obviously a Code right; the right is listed in paragraph 3 of the Code and the purpose is clear.

In just a few cases evidence of fact will be required because some rights are not necessarily telecommunications-related, and therefore more factual context will be needed. The right to install a generator is not a Code right if it is granted in order to supply power to a private house, and evidence of fact might be required if the purpose of the right was not clear. The same goes for the right to lop trees.

But generally the terms of the agreement will be enough. On Tower continues to argue that “once a Code right, always a Code right”: the status of the agreement does not change if the rights are unused for a while. For example, a WIP might have obtained Code rights to build a mast but have been prevented from doing so, perhaps because of planning restrictions or for commercial reasons; the agreement is still a Code agreement, but on an application for renewal the operator can lead evidence as to why it is now in a position to exercise Code rights on the site. But that is not part of the jurisdictional requirement that the operator prove that it is currently a party to a Code agreement.

On Tower’s written submissions were produced before APW’s, and therefore in response to APW’s insistence before the FTT and at the hearing on 9 June 2026 that there was a two-stage test involving proof that the rights were being exercised. In response, On Tower argues that there is no two-stage test requiring the operator to demonstrate both the purpose of the agreement and the exercise of the rights. There is no support in the words of the Code for a requirement under paragraph 33 that the operator prove that the rights were being exercised when the existing agreement was made, nor to demonstrate that rights are being exercised at the time when the operator applies for renewal. Any such requirement would subvert the policy of the Code, which is to facilitate the rollout of modern digital communications infrastructure by making it easier for operators to deploy and maintain infrastructure; to require an operator now, when applying for renewal, to demonstrate what a predecessor in title was doing at the date when the existing agreement was conferred would be to lay an impracticable burden on the operator.

On Tower adds that of course the operator will have to show that the rights it seeks on renewal are Code rights, and therefore that they are sought for the statutory purposes. That will not normally be in doubt. If it is, one of the ways – but not the only way – that the operator can demonstrate its current purpose is to point to its current exercise of Code rights on the site. But that is not required in order to prove that the existing agreement is a Code agreement.

APW has abandoned its requirement that the operator show that it is exercising Code rights in order to show that the FTT has jurisdiction under paragraph 34. Instead, it has formulated a new and more complex evidential requirement for the operator to meet. Mr Clark KC says “mere purpose alone, said to be ascertained from the terms of the agreement, is not a sufficient gateway to an agreement being a Code agreement or justifying its renewal.” There is therefore a two-stage test of purpose, put forward as a jurisdictional requirement, or gateway:

“The Status (General): To even walk through the Tribunal's door, the entity must prove it is an "operator" by reference to its general undertaking (i.e., "I am in the business of providing infrastructure"). This is the general test.

The Right to the Site (Specific): Once inside the door, to get this specific lease/agreement, the operator must prove a site-specific statutory purpose (i.e., "I have a concrete plan of which I have a reasonable prospect of bringing about to install a system here"). This is the site-specific test.”

APW’s written submissions in answer to the UT questions are very lengthy, and length is not always conducive to clarity. I have endeavoured to summarise as best I can.

The first plank in the argument is that where an operator seeks Code rights on a site for the first time, whether it is bare land or a site with a mast already installed, it is not enough for it to point to its status as a Code operator with a direction from Ofcom and to the wording of the draft Code agreement; it must produce fact-specific evidence of what it wants to do on the site. If it is a WIP and wants to build a mast on a virgin site, for example, it will have to produce data coverage plans, design drawings, evidence that it has MNO customers lined up, and a budget and timeline for its work. It must also show the pattern of ownership in its general undertaking, and its specific plans for the site, so as to prove that it is going to own the ECA, rather than having MNOs install their own infrastructure. This goes to the fundamental question: is this applicant actually a Code Operator, or are they a commercial intermediary abusing the statutory framework? Thus it is a jurisdictional requirement which the operator must meet before the tribunal goes on to consider the site-specific public benefit of the proposed rights against the site-specific prejudice to the landowner under paragraph 21. If a WIP wants Code rights over a site where there is ECA already installed it must prove that it owns the ECA. If, for example, the mast on the site is owned by an MNO then arguably the MNO is the occupier of the land rather than APW, which therefore cannot grant Code rights, and the FTT would have no jurisdiction under paragraph 20 to impose an agreement on APW.

The second step is that in the same way, an operator seeking renewed rights under Part 5 must produce evidence of its purposes. It is not enough for it to produce its direction from Ofcom and its draft agreement including the words “for the statutory purposes”. A WIP, for example, must produce detailed evidence to show what it is doing on the site and what it plans to do in the future; importantly, nothing less than proof that it owns the infrastructure on the site, and is thus “providing an infrastructure system” (being one of the statutory purposes in paragraph 4 of the Code), will do. Otherwise it is merely carrying out administrative or financial services and cannot be said to be currently providing infrastructure. “For the purposes of Part 5, the operator must prove a subsisting, realistic and site-specific intention to provide or maintain an infrastructure system under the renewed agreement. If they do not own the mast and have no physical role on site, they cannot prove this prospective statutory purpose and renewal must be refused.”

Third, that requirement to demonstrate that it now (when applying for renewal) holds the statutory purposes for the site is a jurisdictional requirement. In order to show that it is a party to a Code agreement the operator must produce “site-specific factual evidence proving that the real-world exercise of these specific rights is directly tethered to the active provision or maintenance of a functional electronic infrastructure system.” That is because the requirement that rights be conferred “for the statutory purposes” is a fluid one; if it is not satisfied by the operator’s continuing and demonstrated statutory purpose at the time it seeks renewal, the agreement is not a Code agreement and the FTT has no jurisdiction.

Particular concern is expressed about a site where an operator has been granted Code rights, where the site has been unused for five years. The existing agreement may look impeccable, granting a right to install a mast in order to provide an infrastructure system. But the operator cannot rely on the text of the lease. It must “launch a factual site-specific inquiry into the historical reality (that no equipment was ever installed) and the prospective reality (whether the operator has a genuine, realistic plan to use it now).” If that cannot be proved by evidence, the agreement is not a Code agreement. Purpose is fluid and must be evaluated at the date of the renewal hearing.

In other cases the text of the lease cannot demonstrate that a right is a Code right; the rights under paragraph 3(g), (h) and (i), to connect to a power supply, to interfere with access, or to lop trees, cannot be seen to be Code rights without a specific factual inquiry. The apparatus to which the power is to be connected must belong to the operator; the infrastructure being interfered with by the tree branches must belong to the WIP who seeks the right to lop trees. The Code cannot operate on a “paper construction model”; there must always be site-specific evidence.

Moreover, in proving its current purpose for the site a WIP cannot simply rely on the fact that it is a WIP. It must demonstrate its actual purpose for that specific site.

Anything less than such a jurisdictional requirement, as part of the meaning of “a party to a Code agreement” under paragraph 33, would be a recipe for land-banking. APW asserts, at its paragraph 74, that it is On Tower’s case that “that having an existing Code agreement gives them an automatic right to a Part 5 renewal without site-specific interrogation”. Again at paragraph 114 it is said that On Tower is claiming a “blank cheque to acquire land”. On Tower’s case would mean that an operator can force the FTT to grant new Code rights which it has no intention of using:

“78.

… If an operator takes a lease with the initial purpose of building a mast, but then loses funding, fails to get planning permission, and abandons the site for 5 years, the "statutory purpose" has failed as a matter of fact.

79.

If the Tribunal determines the test is a ‘pure purpose’ one, the site provider would be powerless to stop a renewal because the text of the lease still says (in essence) "Code rights use." The court would be forced to impose a new, highly restrictive Code lease on a landowner at a below market rent reaping the financial rewards of the Code for a dead site, which is an absurd and expropriatory result. The issue is particularly acute in the context of a renewal under Para 33 where the public benefit test is irrelevant.” (emphasis added)

By contrast, APW’s two-stage test prevents land banking:

“This two-step process, forming part of the evidential gateway, completely neutralises the land-banking threat. A WIP cannot and ought not to be able use its general status to bypass the requirement for site-specific justification.”

APW points to paragraph 31(4) of the Code in support of its argument that purpose is fluid and an agreement may lose protection. Paragraph 31 of the Code provides as follows:

“(1)

A site provider who is a party to a code agreement may bring the agreement to an end by giving a notice in accordance with this paragraph to the operator who is a party to the agreement.

(2)

[notice requirements]

…

(4)

The ground stated under sub-paragraph (2)(c) must be one of the following—

…

(d)

that the operator is not entitled to the code agreement because the test under paragraph 21 for the imposition of the agreement on the site provider is not met.”

APW says that “if status and entitlement were fixed permanently at the date of the original grant, paragraph 31(4)(d) would be redundant. By allowing an operator to terminate an agreement on the ground that the paragraph 21 test is not currently met, Parliament explicitly acknowledged that the entitlement to Code protection is a fluid, ongoing state.”

Mr Clark KC concludes:

“114.

OT’s 'purpose-only' test [meaning, purpose discerned from the wording of the agreement] is a recipe for land banking. It suggests that once Ofcom designates an entity as an operator, it has a blank cheque to acquire land. The Code does not work this way. The Tribunal's jurisdiction under Para 20 is highly site specific. An operator cannot obtain an agreement for a virgin site simply by pointing to its portfolio elsewhere; it must prove a concrete, site-specific plan to deploy infrastructure on this land.

115.

By parity of reasoning, when dealing with an existing site under Part 5, the test must also be site-specific: is this operator actually the provider of the physical infrastructure standing on this land? If they do not own it, they cannot satisfy that test.”

It bears repetition that the question is about jurisdiction to consider making an order under paragraph 34. It is not: “what is the test to be applied by a tribunal when deciding whether to make an order under paragraph 34?” It is: “what is required for the FTT to have jurisdiction to make that decision?” And what is required by paragraph 33 is for an application to be made, after the giving of notice and the lapse of six months in accordance with paragraph 33, by “an operator or site provider who is a party to a Code agreement”.

I take those words step by step.

First, the application must be made by “an operator”. That is a defined term, in paragraph 2 of the Code. There is no justification for reading anything into those words beyond the definition in paragraph 2. In the present case that presents no problem for On Tower; it has had the Code applied to it by a direction from Ofcom. There is no possible basis on which it might have to adduce site-specific factual evidence in order to bring itself within the term “an operator” in relation to the site in question for the purposes of paragraph 33(1), because “an operator” is a defined term and if it meant something extra in this paragraph the Code would have said so, or used different words.

Whether an operator is a party to a Code agreement has caused problems, addressed in the Court of Appeal’s decision in Vodafone Limited v Potting Shed Bar and Gardens Limited (formerly Gencomp No 7 Limited) [2023] EWCA Civ 825. But the word “party” does not cause any issues in the present case.

The vexed issue here is what On Tower must show in order to prove that it is a party to a Code agreement. A “Code agreement” is one that confers Code rights, defined by paragraph 3 as a right granted “in relation to an operator and any land, … for the statutory purposes” to do one of the activities listed there.

APW’s argument focusses on the words “for the statutory purposes”. I take the steps in APW’s argument, set out above at paragraphs 93 and following, in turn.

The first plank of APW’s argument is about what is required to get Code rights in the first place, if they are not conferred by agreement. APW says that the FTT has jurisdiction to impose Code rights only if factual, site-specific evidence is produced.

That much is uncontroversial. Paragraph 21 of the Code confers a discretion on the FTT to make an order under paragraph 20, i.e. to impose Code rights, only on certain conditions – stated emphatically with the words “if and only if”:

“(1)

Subject to sub-paragraph (5) and paragraph 27ZA, the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met.

(2)

The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

(3)

The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

(4)

In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services.

(5)

The court may not make an order under paragraph 20 if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.

Whether those conditions are met is a matter of judgment, and not of ticking factual boxes. In order to persuade the FTT that those conditions are met an operator will of course produce evidence about the rights it seeks and the reasons why it needs them on this particular site. The statute does not prescribe any particular kind of evidence, and the suggestion that a WIP must always prove that it is going to own the infrastructure it is going to provide cannot be justified from the words of the Code, although no doubt evidence about ownership may be relevant in a particular case.

But as a general observation it is correct that an operator must produce site-specific evidence for the FTT to have jurisdiction to make an order under paragraph 20.

As to the second step, it is uncontroversial that, in order to persuade the FTT to make an order under paragraph 34 the operator will have to produce site-specific evidence. That has never been in doubt. What sort of evidence is required in order to persuade the FTT to exercise its discretion under paragraph 34 in the operator’s favour will vary from case to case. There are no rules. There is certainly no requirement that a WIP prove that it owns the ECA that it proposes to provide, although evidence about ownership may be relevant in some cases depending upon the circumstances.

But APW’s third step is a non sequitur; it does not follow from the first and second. Certainly, site-specific evidence is required in order to persuade the FTT to make an order under paragraph 34; but such evidence is not required in order to show that the FTT has jurisdiction to make such an order.

The suggestion that such evidence must be produced in order to pass a second-stage “gateway” to jurisdiction seems to me to proceed from a misconception, and to involve an impossibly strained reading of paragraphs 33 and 31.

The misconception is the idea that without such a threshold requirement the FTT could be forced to order a new agreement just because an operator produces its Ofcom direction and a draft agreement (see the points summarised at paragraph 99 above). I do not understand where such an idea comes from. If the FTT has jurisdiction to make an order under paragraph 34 it is not forced to make an order. I ask pardon for stating something so obvious but it seems to be required in answer to APW’s assertions.

Nothing in On Tower’s argument lends support to it. APW may perhaps be wrenching out of context of On Tower’s words in its paragraphs 3 and 4, where it refers to what an operator is required to prove “on a reference under paragraph 33”. But On Tower is only talking about jurisdiction. It is talking about jurisdiction because that is what APW has required it to do by the challenge it issued in its statement of case in the FTT. On Tower is not talking about what is relevant under paragraph 34; it accepts that factual evidence will be required at that stage, as can be seen from for example its argument summarised above at paragraph 88 about a formerly unused site.

As to paragraph 33, APW’s argument is that an operator must produce this detailed, factual, site-specific (“granular”, “highly detailed” etc) evidence for the existing agreement to be “a Code agreement”. It says that without such evidence the agreement does not confer rights “for the statutory purposes”, because purpose is “fluid”. This is a re-formulation of the idea that the status of a Code agreement is ambulatory and is lost if one of the ingredients ceases to be present.

Paragraph 33 cannot be read in that way. APW’s argument depends on the proposition that a Code agreement’s status may change depending on the activities of the parties to it, and that is not a realistic reading of paragraph 3 nor a workable reading of the Code. On Tower’s “once a Code agreement, always a Code agreement” is correct. A right is a Code right if it is listed in paragraph 3 and is conferred “for the statutory purposes”, and the purpose of the right is ascertained objectively from the terms of the agreement, occasionally supplemented by factual evidence of the factual context at the time of conferral. In the most unlikely event, for example, that it was not clear from the agreement that the right to connect to a power supply was conferred in order to power ECA, factual evidence can establish that that was what it was for. But the agreement does not flip in and out of protection; there is no authority for that proposition and it is inconsistent with the way the Code has always been thought to operate. That the status of a Code agreement is fixed at the point of conferral was an important plank of APW’s own argument in the Vulcan Arms case.

Nor does paragraph 31 justify APW’s argument. Paragraph 31 is needed precisely because the status of a Code agreement is not fluid. It remains a Code agreement even where, for example, the public benefit test is no longer met. So in a case where Code rights are not being exercised it is open to the site provider to use paragraph 31 to seek to bring the agreement to an end; but unless it does so the Code agreement remains in place and retains its status.

In my judgment APW’s argument cannot succeed. On Tower’s construction of paragraph 33 is correct; in order for the FTT to have jurisdiction to make an order under paragraph 34, all that must be shown in order to demonstrate that an operator is a party to a Code agreement is that the agreement contains one or more of the rights listed in paragraph 3 and that those rights were conferred on an operator (again as defined in paragraph 2)“for the statutory purposes”. Those purposes will normally be ascertained from the terms of the agreement, although occasionally evidence about the factual context may be needed if the agreement itself does not make the purpose clear.

The paragraph 33 jurisdiction test can be seen in operation in the Vulcan Arms decision, where the FTT had no jurisdiction because at the time the agreement was made On Tower did not have the necessary direction from Ofcom which meant that it was not able to exercise the rights granted for the statutory purposes. The test is simple and objective.

Once through the gateway the operator will have to demonstrate that the rights it wants are Code rights, and will normally provide information about its activities on the site and its business needs (see paragraph 34(13)). That is where the site-specific factual information is relevant. Evidence about the ownership of infrastructure may be relevant, depending on the nature of the site provider’s opposition, but no rule that the WIP must own its ECA can be discerned in the Code. The site provider too will adduce evidence; if an infrastructure provider really had turned into a land banker then evidence of that practice could be adduced. In any event where there is dispute about whether the operator needs new Code rights then detailed design drawings, a realistic budget, data coverage plans and suchlike – as Mr Clark KC sets out – will be put in evidence by the operator. In exercising its discretion the FTT will hear evidence about the purpose of the rights sought. It will look at the matters set out in paragraph 34(13) including the operator’s business needs and the use it is currently making of the land. If it is currently making no use of the land and does not have a business need for it – the land banking scenario that APW fears –a new agreement will not be ordered.

Accordingly, I reject APW’s reading of paragraph 33(1) and I accept On Tower’s argument.

Both parties in their written submissions have sought permission to appeal the judge’s findings in paragraphs 24, 36, 97 and 98. Permission is granted to them both because as explained above, the judge’s decisions in those paragraphs were wrong in law. I set out the parties’ respective grounds at paragraphs 69 and 70 above.

It follows from what I have said above that APW’s ground 1A(1) succeeds, but that Grounds 1A(2), (3) and (4) fail.

It follows from what I have said above that all On Tower’s grounds set out at paragraph 69 above succeed.

I set aside the judge’s findings at paragraphs 24, 36, 97 and 98 of his decision and I substitute the Tribunal’s decision as follows:

It remains the case of course that if the FTT has jurisdiction under Part 5 it has a discretion whether or not to grant new Code rights to an operator, and site-specific evidence is of course relevant to the exercise of that discretion. There is no automatic entitlement to new Code rights and site-specific evidence will always be needed at the discretion stage.

Having made his decisions about what is required for the FTT to have jurisdiction under Part 5 the judge went on to make the consequential findings against which it gave APW permission to appeal. The consequential findings all flowed from the FTT’s decisions in paragraphs 24 and 36 that I have set aside. But some of them were findings of fact that might have relevance to the exercise of discretion under paragraph 34. I ask the parties to tell me their views about the status now of the consequential findings and of APW’s grounds of appeal against them.

I believe that APW’s additional ground of appeal 1B is intended to supplement or replace its appeal from the consequential findings. APW should have the opportunity to consider this decision before committing to revised grounds, and so I have not set those grounds out here, but APW should now decide on what grounds, if any, it pursues this appeal.

I think that On Tower’s cross-appeal is now irrelevant, but I ask On Tower to say whether that is correct.

Accordingly I direct that within 28 days of the date of this decision APW make written submissions as suggested above and to tell the Tribunal and On Tower how it would like the appeal to proceed, if at all (without prejudice to whether or not it wishes to seek permission to appeal this decision), and that within 28 days of receipt of APW’s submissions On Tower may respond if so advised. If in view of the forthcoming holiday season the parties need more time, they should seek to agree that and they may ask the Tribunal for an extension if they cannot agree.