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

For the purposes of Part 5 of the electronic communications code, an operator may be a “party to a code agreement” even where an assignment has transferred only the benefit of a licence agreement. The expression is not confined to original contractual parties or to persons who have assumed the burden of the agreement. The relevant operator is ordinarily the operator currently exercising the code rights, since Part 5 is directed to continuation, termination and modification of those rights. This construction better serves the statutory purpose of facilitating the deployment and maintenance of communications infrastructure.

The appeal arose from references concerning licence agreements for telecommunications equipment at two sites. The benefit of each licence had ultimately been assigned to On Tower UK Limited. On Tower served notices seeking new terms and applied under paragraph 34 of the electronic communications code after the agreements had continued under paragraph 30.

AP Wireless II (UK) Limited, the site owner, argued that On Tower was not a “party to a code agreement” because it had acquired only the benefit of the licences and had not assumed a direct burden owed to the site provider. The First-tier Tribunal rejected that objection. The Upper Tribunal dismissed APW’s appeal, adopting a test based on the assignee’s primary responsibility for performing the licence obligations: [2024] UKUT 00429 (LC). The central issue was whether benefit alone was sufficient.

1. Appeal dismissed. The Court of Appeal upheld the dismissal of APW’s challenge, although it adopted reasoning different from that of the Upper Tribunal.
2. The expression “party to a code agreement” in Part 5 of Schedule 3A to the Communications Act 2003 does not have its ordinary contractual meaning exclusively. It includes an operator or site provider currently entitled to the benefit and burden of the agreement, as explained in Vodafone Ltd v Potting Shed Bar and Gardens Ltd (Gencomp).
3. Where the benefit and burden have become separated, an operator with merely the benefit of a code agreement can nevertheless be a party to it for Part 5 purposes. The Code contains no requirement that the operator assume primary responsibility for the agreement’s obligations, enter a deed of covenant in favour of the site provider, or bear the contractual burden.
4. The statutory context supports that conclusion. Part 5 is concerned with continuing code rights after contractual expiry and with their termination or modification. The operator currently exercising the rights is the person with the practical interest in applying for modification under paragraph 33, responding to termination steps under paragraph 31, and seeking interim relief under paragraph 35.
5. The Court recognised tensions with provisions referring to substantial breaches, payment delays and the operator’s business and technical needs. Those difficulties did not justify either APW’s direct-covenant approach or the Upper Tribunal’s primary-responsibility approach. The Code’s purpose and its silence on those matters supported the benefit-only construction.
6. The alternative arguments based on paragraph 12(1) and benefit-and-burden principles were unnecessary to decide. The First-tier Tribunal was right not to strike out On Tower’s applications, and the Upper Tribunal was right to dismiss APW’s appeal.

• Court of Appeal (Civil Division): appeal dismissed on 3 February 2026.
• Upper Tribunal (Lands Chamber): APW’s appeal from the First-tier Tribunal was dismissed: [2024] UKUT 00429 (LC).
• First-tier Tribunal (Property Chamber): held that On Tower was a “party to a code agreement” and could make the paragraph 33 applications. The citation is not stated in the judgment.