[2025] UKUT 280 (LC)

The Code regulates the legal relationships between landowners and those who have electronic communications apparatus (or “ECA”) on land – or as the Code puts it, between site providers and operators. The latter are business organisations that either operate an electronic communications network (known as “MNOs” or mobile network operators) or provide the physical infrastructure (such as masts) that enables other operators to do so. The provisions of the Code apply only to those operators to whom “the code is applied” by a direction under section 106 of the Communications Act 2003. Thus there are Code operators, and there are other operators. The appellant is a Code operator, the respondent is not.

The Code sets out at paragraph 3 a list of “Code rights” which operators may need for their business of providing a network or providing infrastructure. Not all Code agreements confer all the Code rights on the operator; but the conferral of one or more Code rights is what makes an agreement subject to the provisions of the Code, including its provisions about consideration and about security of tenure. Code agreements may be made consensually, or may be imposed upon the appellant and the site provider by an order made by the FTT following a reference under the Code. Their terms include not only the conferral of Code rights but also other terms.

A significant innovation of the Code, which came into force in December 2017, was the change it made in the basis of consideration paid by operators to site providers. Paragraph 24 of the Code provides that consideration is now paid at a rate which assumes “that the right that the transaction relates to does not relate to the provision or use of an electronic communications system”; that provision, known as the “no network assumption”, means that consideration is calculated without regard to the commercial market value of the right to the operator. That has made the position of site providers considerably less attractive and is the reason why the Code has provoked so much litigation since its coming into force in December 2017; site providers receive consideration for what they provide and compensation for any loss or damage that they suffer because of the exercise of Code rights, but the Code does not provide for them to make a profit out of the arrangement.

The Code gives operators security of tenure; so where the Code agreement is a lease, for example, at the expiry of its term it nevertheless continues so that the operator can continue to exercise its Code rights (paragraph 30). However, Part 5 of the Code makes provision for a Code agreement nevertheless to be brought to an end following the giving of a notice, and for the site to be vacated, or alternatively for a new Code agreement to be made by the parties, either by agreement or by an order made under paragraph 34.

References under the Code were originally made to the Upper Tribunal, but now that most issues of principle have been resolved provision has been made for references to be commenced in the FTT and to reach the Upper Tribunal only on appeal as this one has done.