Summary
In this case, the First-tier Tribunal (Property Chamber) (the “Tribunal”) rejected a site provider’s redevelopment argument under Paragraph 21(5) of the Electronic Communications Code in a dispute to replace a mast in a telecoms site. The Tribunal held that the site owner had not shown a “reasonable prospect” of implementing its plans, which depended on mobile network operators (MNOs) migrating to the new tower/mast, so the development ground failed.
The statutory test for imposing a Code agreement was met, clearing the way for the occupier to secure Code rights over the site.
Background
The dispute was about a telecoms site at Queen’s Oak Farm, , Northamptonshire, occupied by On Tower UK Limited (formerly Arqiva Services Limited). On Tower sought new Code rights under paragraph 20 of the Code to continue operating its mast.
Icon Tower Infrastructure Limited (“Icon”), the freeholder, opposed the application, stating its intention to remove the existing mast and build a new 25‑metre tower.
Following a procedural history beginning in 2019, the Supreme Court in Compton Beauchamp Estates Ltd v Arqiva Services Ltd [2022], confirmed that operators in On Tower’s position may seek Part 4 Code rights. The matter was remitted to the Tribunal to determine Icon’s redevelopment defence.
Planning position and permitted development
Icon obtained two planning consents in 2024–2025: approval for a 25 m mast on the “Icon Site” and a determination that prior approval was not required for a “go-over” scheme on the On Tower site replacing the existing mast with Icon’s 25 m structure. A unilateral undertaking was offered to the Local Planning Authority to avoid simultaneous implementation of both schemes. The Tribunal accepted the undertaking as a material consideration improving the prospects of the 2025 determination but emphasised that it created only an “either/or” pathway and did not make the 2024 approval unimplementable.
On permitted development, the Tribunal clarified that On Tower’s rights under Part 16 of the GPDO extended only to replacing a mast up to 25 m on its existing site before decommissioning. Any replacement elsewhere required prior approval, and any mast exceeding 30 m needed full planning permission.
The technical evidence and legal test
The experts agreed that Icon’s proposed 25m lattice mast could accommodate existing and foreseeable apparatus and could be built within 12–26 weeks. The Tribunal found no technical impediment to timely delivery.
Paragraph 21(5) bars the Tribunal from imposing Code rights where the site provider intends to redevelop and could not reasonably do so if an order were made. Applying the established two‑limb test from Cunliffe v Goodman and the S Franses “acid test,” the Tribunal considered:
- whether Icon had a firm, unconditional intention to redevelop and a reasonable prospect of carrying it out by its own acts; and
- whether the works amounted to “redevelopment” of land.
Findings on intention and prospects
On subjective intention, Icon advanced an investment‑led business case approved by its investment committee and board. Icon and its parent offered undertakings to commence and fund the redevelopment on vacant possession. The Tribunal treated those undertakings as powerful, but not conclusive, evidence of genuineness. It found Icon’s settled intention was to implement an investment case premised on migration by three carriers (EE/H3G via MBNL; VF/VMO2 via CTIL; Anglian Water) and rejected later “naked tower” or deferred‑migration scenarios as mere contemplation lacking documentary support or commercial coherence.
On objective prospects, the Tribunal found no planning or funding obstacles but held that viability turned on mobile network operator (“MNO”) migration. Icon had not engaged with the MNOs; some were pursuing alternative sites and had objected to Icon’s 2025 planning proposal. Icon’s speculative towers elsewhere had struggled to attract occupiers, and its litigation posture had strained operator relationships. On the balance of probabilities, the Tribunal was not satisfied that migration was reasonably likely. Icon therefore failed the objective limb: it did not have a reasonable prospect of carrying out the redevelopment as intended.
Conditionality and reasonable time
Applying Franses, the Tribunal concluded that Icon’s intention was not conditional in a way that would disqualify it on On Tower asserting Code rights: it would still proceed with the same works if vacant possession were surrendered voluntarily. On timing, the works could be commenced and completed within a reasonable period post-termination, on the expert evidence.
Is replacing a mast “redevelopment” of land?
The Tribunal confirmed that taking down one mast and erecting another on the same land can constitute redevelopment for the purposes of Paragraph 21(5). It treated “redevelopment” as a broad, fact‑sensitive concept requiring more than trivial works and a meaningful change in what is on the land. For example, replacing a mast with a materially different structure (height, capacity or layout). The definition of “land” in the Code does not preclude that conclusion.
Outcome
The redevelopment ground failed. Icon did not establish the requisite intention under Paragraph 21(5), because it could not satisfy the objective limb given the absence of a reasonable prospect of MNO migration integral to its business plan. The statutory conditions for imposing a Code agreement were satisfied. With the redevelopment defence dismissed, the Tribunal held that the test under Paragraph 21 for imposing Code rights was satisfied.
Key implications
For site providers, the decision confirms that an investment thesis and undertakings (and even board approvals), however genuine, will not suffice without evidence that third‑party migration is reasonably likely; this goes to the objective limb and cannot be cured by genuineness alone. The Tribunal’s planning analysis clarifies PD boundaries under Part 16 of the General Permitted Development Order and their site‑specific, time‑critical nature: replacement up to 25m at the same site without prior approval is available only before decommissioning; other scenarios require prior approval or full permission. It also affirms that “go over” schemes can constitute redevelopment. But where a case is anchored to displacing an incumbent and attracting its customers, success will turn on operator migration, relationships, credible engagement, and surrounding network strategy.
Practical takeaways
A robust redevelopment defence requires both genuine commitment and realistic deliverability. If the business case hinges on MNO migration, contemporaneous engagement and market evidence are key. Planning strategy can help but is not determinative. Unilateral undertakings may improve planning prospects but their legal effect and evidential weight will be scrutinised. Operators’ permitted development rights are constrained by location and timing.
The Tribunal clarified that PD rights under Part 16 of the GPDO are site-specific and time-limited and cannot be relied upon to relocate infrastructure or to install new masts above 25 m without further approval. Undertakings remain a strong evidential tool on genuineness, but the Tribunal will separately assess objective feasibility.
On Tower UK Ltd (formerly Arqiva Services Ltd) v AP Wireless II (UK) Ltd (1) Icon Tower Infrastructure Ltd (2)
For a different outcome in a recent case on a similar issue, please see here.
Article co-authored by Eylul Atesogullari, Solicitor Apprentice.
