Communications Act 2003, Schedule 3A, paragraph 21

What is the test to be applied by the court?

SCHEDULE 3A The electronic communications code

21 (1) Subject to sub-paragraph (5) [F1413 and paragraph 27ZAF1413] , 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.

Definitions used in Schedule 3A, paragraph 21 4

relevant person

(7) In sub-paragraph (6)(a) “relevant person”, in relation to land to which section 90B(5) of the Scotland Act 1998 applies, means the person having the management of that land.

Defined in Sch.3A para.104(7) · see it in the full Act
access

“access” is to be construed in accordance with subsection (4);

Defined in s.405(1) · see it in the full Act
electronic communications service

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
land

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Defined in Sch.4 para.5(8) · see it in the full Act

Cases considering Schedule 3A, paragraph 21 15

Cornerstone Telecommunications Infrastructure v Ashloch Ltd & Anor (Rev 2)

[2021] EWCA Civ 90 · 29 January 2021Defines

Before imposing an agreement, the court applies the statutory prejudice and public-benefit test, subject to the redevelopment bar. The test was not reached because jurisdiction failed. (see para [29])

The University of London v Cornerstone Telecommunications Infrastructure Limited

[2019] EWCA Civ 2075 · 26 November 2019Limits

Paragraph 21 supplies the full test for imposing an agreement under paragraph 20. The paragraph 26 good arguable case test is a distinct, lower interim threshold for showing that paragraph 21 is met. (see paras [13], [59], [77], [83]) The public interest in access to a choice of high quality electronic communications services illustrates the Code’s public-interest purpose. That purpose supported treating preliminary MSV operations as works connected with installation. (see paras [47], [55]) The redevelopment restriction was considered as a safeguard for landowners. The court held that risks to redevelopment could be addressed by making an interim right terminate on a specified event, such as planning permission. (see paras [79]-[80])

Icon Tower Infrastructure Limited v On Tower UK Limited

[2026] UKUT 89 (LC) · 27 February 2026Interprets

The Tribunal confirmed that the paragraph 21 conditions for imposing a code agreement were met once Icon failed to establish the paragraph 21(5) ground of opposition. (see paras [5]-[6]) The Tribunal held that the site owner had to prove a firm and settled intention, a reasonable prospect of carrying out the redevelopment, and an unconditional intention. Icon failed on the objective element because migration by the mobile network operators was not shown to be reasonably prospective. (see paras [15]-[16]; [59]-[60])

What each judgment says about Schedule 3A, paragraph 21 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F1413Words in Sch. 3A para. 21(1) inserted (26.4.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 66(3), 79(2); S.I. 2023/469, reg. 2

Modifications

  1. C81Sch. 3A para. 21 applied (with modifications) (E.W.) (11.8.2022) by The Sizewell C (Nuclear Generating Station) Order 2022 (S.I. 2022/853), art. 1, Sch. 18 para. 4(4) (with arts. 62, 76, 87)
  2. C82Sch. 3A paras. 21-24 applied (with modifications) (13.11.2025) by The Stonestreet Green Solar Order 2025 (S.I. 2025/1175), art. 1, Sch. 12 para. 4(4) (with art. 40, Sch. 13)