[2024] UKUT 51 (LC)

This is the Tribunal’s determination of preliminary issues in a reference under Schedule 3A to the Communications Act 2003, known as the Electronic Communications Code or simply “the Code”. The claimant, On Tower UK Ltd, has equipment on the roof of a telephone exchange belonging to the respondent, and the respondent, British Telecommunications plc, wants it removed; that apparently straightforward situation is complicated by the fact that both parties are “Code operators”, that is, organisations who have been designated by OFCOM as ones that may benefit from Code rights pursuant to section 106 of the 2003 Act.

The claimant was represented by Mr Kester Lees, and the respondent by Ms Stephanie Tozer KC and Ms Tricia Hemans; we are grateful to them all.

In the paragraphs that follow we set out the factual and legal background to the reference, and then we address the issues we are asked to decide.