Michael Upton

The ‘new’ Electronic Communications Code came into force at the end of 2017 as a schedule to the Communications Act 2003. It governs telecoms masts and other “electronic communications apparatus”; specifically, relations between their operators and the occupiers of the land or buildings on which the apparatus sits. The last few months have seen another half-dozen judgments about the Code which provide useful guidance.

CTIL v Manwaring, FTT, (England), 16 May 2025

Code applications are typically under Part 4 for a telecoms operator to secure rights over a new site, or under Part 5 in respect of an existing site, for the termination of a subsisting agreement pre-dating the enactment of the new Code in 2017 and its replacement with a new agreement. The advantages to the operator are that a new agreement (whether imposed by the tribunal or agreed) will be for a lower, new-Code rent, and be fully subject to the new Code. That is not the case with subsisting agreements, because the 2017 reforms did not apply to the terms of existing contracts. Manwaring reiterates previous decisions that when a new agreement is imposed, there is no presumption in favour of the terms of the old one.

AP Wireless II (UK) Ltd v On Tower (UK) Ltd, [2025] EWCA Civ. 971

The Code refers simply to “agreements”; it is silent about whether the tribunal can impose a lease, as opposed to a licence or a wayleave, but it has been held that it can: EE Ltd v Islington LBC [2019] UKUT 53. In this Court of Appeal case, the question was whether an agreement was a lease or a licence. In England a lease must be for a certain period of time. The agreement was expressed to be for ten years, after which it could be terminated by either party giving a year’s notice. The court held that did define a certain period of time, so the contract was not a lease but only a licence. 

In contrast, Scots law gives effect to leases expressed to endure “as long as the grass groweth up and the water runneth down”: Carruthers v Irvine, 1717 Mor. 15195. However, while agreement that a lease will last for more than 175 years does not mean that it is not a valid lease, it will terminate after that period of time: section 67 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

EE Ltd v A P Wireless (II) UK Ltd, FTT (England), 8 August 2025

Notices under the Code must by statute give information about alternative dispute resolution. Lord Millett was not quoted but might have been: “The difficulty arises from the common practice of the legislature of stating that something ‘shall’ be done without stating what are to be the consequences if it is not done”: Gurney v Petch, Court of Appeal, 27 May 1994. The FTT held non-compliance would not invalidate a notice, having regard to the Supreme Court’s general review of how to resolve such difficulties in A1 Properties (Sunderland) Ltd v Tudor Studios RTM, [2024] UKS.C. 27.

Eighteen months’ delay in applying to the tribunal was held not to be an abuse of process by the operator.  Once a Part-5 notice has been given and six months have passed, either party can apply to the tribunal for it to determine what should happen in respect of the subsisting agreement (para. 33(5)), so a remedy for the delay had lain in the respondent’s own hands.

On Tower UK Ltd v AP Wireless II (UK) Ltd [2025] UKUT 280

This was an appeal by On Tower; a Code operator which provides infrastructure so that it can grant the use of its masts to other operators – ‘site sharers’ in the jargon, where we might otherwise speak of sub-tenants. 

AP Wireless buys and manages telecoms sites. Sometimes it takes an interposed lease, granted by the land-owner so as to make AP the mid-landlord; AP pays a premium to the landlord and takes on the benefit and burden of being the operator’s landlord, including collecting the rent.

On Tower had apparatus on sites, use of which it wished to share. Apart from the apparatus itself, it wished also to grant rights to share the solum of a site. For example, it wanted to share the right to install cabinet on and cables under the sites. It also wanted to grant additional rights to sharers, including access. 

AP objected that was unnecessary because On Tower could itself install such items and itself take such access as was necessary to serve its sharers’ needs, or authorise them to do so as its agents. The tribunal found the dispute somewhat scholastic, resolving as it did into question about the precise capacities in which personnel would be on site. It held that the additional sharing rights would not cause loss or damage to AP.

More broadly, it also clarified that the rights which an operator can be granted in an imposed agreement are not limited to Code rights. Code rights are rights on which it confers statutory protection, but they are not the only ones which can be imposed. In principle, it would be competent to impose a whole range of non-Code rights in terms of an agreement imposing at least one Code right. Nor does the addition of non-Code rights mean that site providers are entitled to payment of a commercial supplement, over and above the low rents which the Code’s valuation criteria entail.

CTIL v Firoka (Kings Cross) Ltd, FTT (England), 17 November 2025

The operator sought to have an agreement imposed on a new site under para. 20. The tribunal held that the respondent had proved it intended to re-develop the site in a manner which communications apparatus would prevent, within the meaning of para. 21(5), and had undertaken to proceed with the re-development. The application was accordingly refused.

If the issues had arisen, the tribunal would have held that the annual rent for apparatus on an urban roof should now be £6,950. As for proposed agreement, 49 issues had been argued and determined in a schedule which provides guidance as a template. The tribunal deprecated parties’ inability to reach agreement on such matters of detail. It emphasized that parties should approach drafting so as not to duplicate safeguards, nor require possibly unnecessary communications over the agreement’s lifetime, and always assume due professionalism on both sides.

EE Ltd v Verte Development Ltd, [2025] LTS 5 and [2025] LTS 5

The annual rent for a commercial urban roof-top site was set at £5,750, indexed to the CPI This in line with the range of figures for such sites from £3,850 to £6,950.

The application was to terminate an existing agreement, under which the rent was £9,600, and for its replacement by a new agreement, on terms to be agreed or determined by the tribunal. It ordered that the new rent should apply in the interim, from the lodging of the application until the new agreement was imposed, where the respondent’s right to continue to collect the old rent could otherwise give it an incentive to protract proceedings.

Looking ahead

There have now been over a hundred published judgments about the Code. Admittedly only half-a-dozen have touched on the continuing proliferation of 5G sites. It will be interesting to see whether their increasing numbers will see the maintenance of past levels of litigation. Possibly most of the big issues of principle about how the Code is to work have now been clarified, and parties will cut their cloth accordingly. But there remain some potentially costly issues still to be explored in detail, such as the scope for site providers to claim compensation for loss and damage over the whole lifetime of the thousands of Code agreements which are now in place.