[2025] UKUT 280 (LC)

The appellant is a wholesale infrastructure provider, or “WIP”, providing ECA for MNOs (both Code operators and others) to use. For example it provides mobile phone masts, and allows network operators to place antennae on its masts. Its customers typically also bring some of their own ECA to the site, including cabinets and cables. The appellant’s infrastructure is placed on land pursuant to agreements regulated by the Code and which include both the grant of Code rights and other terms. However, the Code does not regulate the placing of ECA on ECA; so the appellant’s customers pay a commercial rate for the right to place antennae on its masts, for example, without the benefit of the no network assumption.

The respondent’s business is the purchase and management of telecommunications sites such as mast sites; in some cases it takes intermediate leases of land already subject to Code agreements, making a capital payment to the original site provider and thenceforth being the immediate landlord to the operator, while in others it buys the freehold of the site, with or without some surrounding land. Unlike many site providers it is not using the site for a business unrelated to telecommunications – farming, for example, or offices where the site is a building. Its business is simply the acquisition and management of telecommunications sites for which it receives the consideration and compensation payable pursuant to the Code.