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

This dispute came out of two telecoms sites where the paperwork had outlived the original operator. One site was at Fields Farm in Sandbach, Cheshire. The other was at Blackwell Grange Golf Club in Darlington. In each case, an operator had originally been granted a licence to keep and operate telecoms apparatus on the land. Over time, the benefit of those agreements moved through a chain of assignments until it reached On Tower UK Limited.

That kind of history is common in telecoms infrastructure. Sites can stay live for many years while operators merge, restructure, share infrastructure or move rights between group companies and specialist infrastructure businesses. The commercial reality on the ground can end up looking very different from the name on the original licence.

On Tower wanted to use Part 5 of the Electronic Communications Code to seek new arrangements at lower rents. It served paragraph 33 notices and then made references under paragraph 34. AP Wireless II (UK) Limited argued that On Tower could not even start that process because it was not a "party to a code agreement". If that argument succeeded, the applications could be struck out before the tribunal got anywhere near the proposed terms.

The legal issue sounds technical, but it has a direct practical effect. Part 5 of the Code deals with continuation, termination and modification of existing code agreements. It is the machinery used when an older telecoms site arrangement is still in play and one side wants to end it, change it or replace it.

The key phrase was "party to a code agreement". The court had to decide whether that phrase includes an operator that has taken an assignment of the benefit of a site agreement, even if the burden of the contract has not also passed in the usual contract-law sense.

AP Wireless said no. Its position was that an operator should only count as the relevant party if it had both the benefit and the burden, or at least had become directly answerable for the operator obligations in a way that put it fully in the shoes of the original contracting operator. On Tower said that reading was too narrow and did not fit how the Code is meant to work where site rights have moved over time.

This mattered because if On Tower was not the right party, it could not use paragraph 33 to seek modified terms and could not pursue the paragraph 34 applications built on those notices.

The Court of Appeal dismissed AP Wireless’s appeal. It held that, for Part 5 purposes, an operator with merely the benefit of a code agreement can still be a "party to" that agreement. In other words, benefit alone can be enough.

The court accepted that this is not the ordinary contract-law meaning of who is a party to an agreement. But it said the Code has to be read in the way that best makes the statutory regime work. Part 5 is aimed at existing site arrangements where code rights continue and where the operator actually using the site needs to be able to seek changes, respond to termination notices and protect its position.

The court rejected the idea that the operator also had to show that it had assumed the burden of the agreement through a deed of covenant or some other mechanism. It also did not need to decide On Tower’s alternative arguments based on paragraph 12(1) of the Code or benefit-and-burden principles, because the appeal could be resolved on the broader interpretation of Part 5 itself.

The court’s reasoning was strongly shaped by how Part 5 is supposed to operate in real life. It looked at the structure of the Code and asked which interpretation made the regime workable. The judges noted that Part 5 assumes there will be an operator who can receive notices, serve counter-notices, seek modified terms and ask the tribunal for orders. In practice, the operator with the clearest interest in doing those things is the one currently exercising the code rights on the site.

The court pointed out that it would be odd if those steps had to be left to an original operator that might no longer use the site, might have had no involvement for years, or might even have ceased to exist. It also noted that other parts of Part 5 refer to matters such as the operator’s business and technical needs. Those are naturally the needs of the current operator, not a historic one.

The judges accepted that some wording in Part 5 can point the other way, especially where the Code refers to breaches of the operator’s obligations or payment delays. But they concluded that the best overall fit was still a practical reading that lets the operator now enjoying the rights use the statutory process.

This decision matters most where telecoms site arrangements have been around for a long time. If your business owns or manages land with telecoms apparatus on it, the name on the original agreement may not tell you who can now act under the Code. The business you need to deal with may be the operator or infrastructure company that currently has the benefit of the agreement and is actually using the site rights.

That affects day-to-day decisions. If you receive a notice seeking new terms, you should not reject it simply because the sender was not the original contracting operator. If you are planning redevelopment, considering termination steps or reviewing site income, you need to identify the current legal and operational position first.

For operators and infrastructure providers, the case is helpful because it reduces the risk that a Part 5 application fails on a narrow standing point where older licence structures do not neatly transfer contractual burdens. But it is not a free pass. You still need a clear assignment trail, accurate site records and evidence showing why you are the operator now enjoying the benefit of the agreement.

There are a few practical habits businesses can take from this case.

First, keep a live site file rather than relying on the original signed agreement alone. For a telecoms site, the useful file is likely to include the original agreement, later assignments, any name-change evidence, notices served under the Code, payment records and a clear note of who is physically operating the apparatus.

Second, treat standing questions as an early risk issue in any negotiation or dispute. If your business is a site provider, a mistaken challenge to standing can waste time and cost while the operator continues to press for new terms. If your business is the operator, weak records about assignments can still create delay even after this decision.

Third, remember that this case is about who can use Part 5. It does not mean every assignee automatically wins on rent, term length, redevelopment or any other commercial point. It simply decides who can get through the procedural door.

Finally, if you are buying or refinancing land with telecoms equipment on it, ask early whether the site is subject to Code rights and who currently holds the benefit of the agreement. That can affect value, timing and future flexibility.

A few examples show where this ruling can matter.

Example one: your company buys a warehouse with rooftop telecoms equipment. The licence on file names an operator from many years ago, but rent is now being paid by a different infrastructure business and all site contact comes from that business. If it serves a Part 5 notice seeking new terms, this case suggests the notice may still be valid even if the old contractual burden did not pass in the usual way.

Example two: your business hosts a mast and wants to redevelop part of the land. Before serving any termination notice, you need to identify the operator who is the relevant party under the current Code position. Focusing only on the original named operator could create delay or procedural challenge.

Example three: your business takes an assignment of telecoms site rights as part of a wider infrastructure deal. This case helps on standing under Part 5, but you should still make sure the assignment chain is documented properly. The court’s practical approach does not remove the need to prove that the benefit of the agreement has in fact reached you.

The wider lesson is about long-running commercial arrangements, not just telecoms law. Where rights have moved through several hands, the business reality can drift away from the original contract wording. A dispute may then turn on who the law treats as the relevant actor for a particular statutory process.

In this case, the Court of Appeal preferred a reading that keeps the Code workable and aligned with the operator actually using the site. For ordinary businesses, that means process and records matter. If your property, operations and finance teams all hold different versions of the site history, you are more likely to miss a notice, challenge the wrong party or misjudge your negotiating position.

So the safest approach is practical rather than theoretical: identify who currently benefits from the agreement, who is operating on the land, what notices have been served and which Code route is being used. That groundwork will usually matter more than abstract arguments about old contract labels.