Icon Tower Infrastructure Limited v On Tower UK Limited

For paragraph 21(5) of the Electronic Communications Code, a site owner must establish a firm and settled intention to redevelop, a reasonable prospect of carrying out the works by its own act or volition, and an unconditional intention in the Franses sense.

The burden rests on the site owner. An appellate tribunal must not interfere with factual evaluations merely because it might have reached a different conclusion. Replacing one communications mast with another can constitute redevelopment. The relevant question for unconditionality is whether the same works would be undertaken if code rights were not sought; the fact that the proposal was prompted by litigation or had a legitimate commercial purpose is not decisive.

On Tower applied under paragraph 20 of the Electronic Communications Code for the imposition of a new agreement conferring code rights over a mast site owned by Icon. Icon opposed the application under paragraph 21(5), asserting an intention to replace On Tower’s mast with its own.

The First-tier Tribunal found that Icon’s intention was conditional upon migration by mobile network operators and that there was no reasonable prospect of such migration. It therefore held that paragraph 21(5) was unavailable and that the conditions for imposing a code agreement were met. Icon appealed. On Tower advanced a cross-appeal on alternative grounds, including the meaning of redevelopment and the application of the Franses principle.

1. Appeal dismissed. The FTT had correctly stated and applied the law on intention. Its findings were findings of fact and evaluation which could not be disturbed on the evidence.
2. An appellate tribunal may interfere where the first-instance tribunal misunderstood the issue or evidence, failed to take account of a material factor, made an identifiable error of law, left a gap in its reasoning, or reached a conclusion which no reasonable tribunal could reach. It must not retry the case or substitute its own evaluation merely because it would have reached a different conclusion.
3. The FTT was entitled to find that Icon had a firm and settled intention only on the investment-led basis identified in its financial model, which depended on mobile network operators migrating to the proposed tower. The undertakings given by Icon and its parent were relevant evidence but were not conclusive. Although the FTT should have explained expressly why it did not treat them as a reliable indication of genuine intention, that omission did not justify appellate intervention.
4. The FTT was also entitled to find that Icon had failed to prove a reasonable prospect of migration and that the most likely outcome was that the mobile network operators would not migrate. The evidential burden rested on Icon; On Tower was not obliged to call evidence from the operators.
5. For completeness, the Tribunal rejected the cross-appeal arguments. Following Steppes Hill Farm, replacing an existing mast with a new mast using the same site can amount to redevelopment under paragraph 21(5). The identical wording of paragraph 31(4)(c) did not require a different interpretation, and the Tribunal declined to revisit its previous decision absent a conviction that it was clearly wrong.
6. The Franses test asks whether the same works would be undertaken if code rights were not sought. A proposal may have been lawyer-led or prompted by the claim for code rights, yet remain unconditional if the works would nevertheless be carried out. The FTT was entitled to find that this test was satisfied. The Tribunal left the separate question concerning the assumed date of vacant possession undecided because it was unnecessary and any ruling would have been obiter.
7. No order was made on On Tower’s cross-appeal.

• Upper Tribunal (Lands Chamber): Icon’s appeal from the First-tier Tribunal was dismissed. No order was made on On Tower’s cross-appeal.
• First-tier Tribunal (Property Chamber): On 29 October 2025, the FTT determined the preliminary issue against Icon. It held that Icon could not rely on paragraph 21(5) and that the test for imposing a code agreement was met.