FTT hands down judgment on redevelopment and Paragraph 21(5) of the Code in Queen’s Oak Farm telecoms case
Following On Tower’s (OT) success in the Supreme Court in Compton Beauchamp [2022] UKSC 18, OT’s Paragraph 20 claim for the imposition of a new Code agreement in relation to the site known as Queen’s Oak Farm was remitted to the FTT for determination.
Icon (APW’s sister company, itself a Code operator, and successor in title to APW) sought to oppose the imposition of a new Code agreement on three bases which were listed for trial as preliminary issues:
- Whether OT could satisfy condition 1 in paragraph 21: whether the prejudice (if any) caused to the relevant person by the order is capable of being adequately compensated by money.
- Whether OT could satisfy condition 2 in paragraph 21: whether the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.
- Whether Icon could make out the ground for opposition contained in paragraph 21(5): whether Icon intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.
Shortly prior to the trial Icon conceded preliminary issues 1 and 2; therefore, the sole question before the FTT was whether Icon had a requisite intention. Icon’s case was that it intended, once it obtained vacant possession, to erect a mast on the site.
Following a seven day trial, the FTT determined that Icon did not have the requisite intention as:
- Icon’s subjective intention to erect the mast was conditional upon attracting the Mobile Network Operators (MNOs) currently in situ on the OT mast over to an Icon mast; and
- For a variety of factors, on the balance of probabilities, the MNOs would not come across to the Icon mast.
Accordingly, OT made out the imposition test in Paragraph 21 and a new Code agreement will be imposed. The matter is now listed for a CMH so that the terms and consideration of that agreement can be determined.
In obiter comments, the FTT also determined that:
- Icon’s intention would not be conditional in the Franses v Cavendish sense.
- Icon could realise any development within a reasonable time.
- Replacement of a mast could constitute “redevelopment” for the purposes of Paragraph 21(5) of the Code.
The Decision will likely be of wide interest and application in the industry given it is the first consideration of Paragraph 21(5) since the Upper Tribunal decision in EE v Chichester [2019] UKUT 164 (LC) and after the Upper Tribunal decision in Steppes Hill Farm [2025] UKUT 00058 (LC) (which concerned the redevelopment opposition ground under Paragraph 31 of the Code).
A copy of the Decision is available below.
Kester Lees KC and Imogen Dodds acted for On Tower, instructed by Alicia Foo and Mairghread Yule of Pinsents Masons LLP, and Wayne Clark KC and Fern Schofield acted for Icon, instructed by Thekla Fellas and Karen Mitchell of Eversheds Sutherland International LLP.
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