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FTT hands down judgment on redevelopment break clause and height restrictions in Telecoms lease

In the latest round of On Tower (UK) Limited v (1) AP Wireless II (UK) Limited, and (2) Icon Tower Infrastructure Limited, which concerns the totemic site of Queen’s Oak Farm, the FTT had to determine the appropriate terms for imposition following a two day trial last month.

At the previous trial, the FTT rejected Icon’s reliance upon Paragraph 21(5) finding that its intention to redevelop was conditional upon MNOs agreeing to come across to the new mast and that, on the balance of probabilities, those MNOs would not come across to a new Icon mast (see here). That decision was recently upheld by the Upper Tribunal (see here).

The parties agreed the inclusion of a redevelopment break clause (on 18 months’ notice) but disagreed as to from when it should be exercisable. Icon sought one immediately exercisable whereas On Tower argued for the fifth anniversary.

The FTT accepted On Tower’s argument that, as a WIP and neutral host, it had a business need for a minimum term of security of tenure and that an immediate break would render the renewal proceedings “pointless”. Therefore, the FTT agreed with On Tower that it should have a minimum term of five years.

Similarly, Icon sought to argue for a restriction preventing any replacement of the mast or increase in its height (at trial this was limited to the initial period of the term until any break notice might be served). The FTT rejected this restriction as both (i) it would hinder On Tower’s business need as a neutral host to be able to respond to customer upgrade requests, and (ii) Icon’s concern (as to commercial opportunities with another operator on a separate mast) was purely speculative and would not result in any loss beyond that initial term anyway.

Finally, as part of the same batch of sites, in respect of a site known as Lark Lane, which was renewed under para. 33, the Tribunal agreed with On Tower that it was appropriate to backdate interim consideration to the date of On Tower’s application, rather than a later date on which the reference had been restored (after initially being struck out) following the Court of Appeal’s decision on minimum term agreements in AP Wireless II (UK) Limited v On Tower (UK) Limited [2025] EWCA Civ 971.

Kester Lees KC and Imogen Dodds, instructed by Alicia Foo, James Lilley and Mairghread Yule of Pinsent Masons LLP, acted for On Tower. Wayne Clark KC and Fern Schofield, instructed by Daniel Cuthbert and Ella Carroll of Freeths LLP, acted for AP Wireless and for Icon.

Copies of the Decisions are here and here.