The FTT clarifies the “statutory purposes” test and that it is sufficient to annex Heads of Terms to a P33 notice in the first batch of rooftop sites to be renewed under Part 5
In the first batch of rooftop sites to be renewed under Part 5 of the Code, the FTT has handed down judgment in respect of numerous preliminary issues (“the Decision”).
Briefly, On Tower (“OT”) sought to renew existing Code agreements (“the Agreements”) in respect of 10 rooftop sites (“the Sites”). AP Wireless (“APW”) sought to oppose the renewal of the Agreements on various jurisdictional bases, which were listed for trial as seven preliminary issues. The trial took place between 17 and 19 November 2025 (inclusive).
It is anticipated that the Decision will be of wide interest and application in the industry, given the number and range of preliminary issues. However, the following aspects of the Decision are particularly noteworthy:
1. “Statutory purposes”: The FTT clarified the operation of the “statutory purposes” test, which was considered by the FTT for the very first time earlier this year in On Tower UK Limited v AP Wireless II (UK) Limited BIR/OOCN/ECR/2024/0602 & ORS (“Lupton Road”), in which Taylor Briggs appeared as junior counsel for OT and Wayne Clark KC appeared as leading counsel for APW; see the decision here). In the present reference, all but one of the Agreements had originally been entered into by a mobile network operator (“MNO”). APW accepted that the statutory purposes test was satisfied in respect of those Agreements as at the date of entry into them. However, APW advanced the further proposition that the statutory purposes test must also be satisfied at the date of imposition of the new, renewed agreement. The FTT accepted that, as at the date of entry into the new agreement, the “statutory purposes” test must be satisfied because the new agreement confers Code rights, describing this as “the Paragraph 34(6) Test”. The FTT went on to find that, on the facts, OT had satisfied this test, as OT had owned the principal passive infrastructure at each of the Sites from 2020 onwards. The FTT held that, in view of its findings of fact (both in this reference and in Lupton Road), further consideration of the Paragraph 34(6) Test was not necessary. OT had proved (twice) that, by 2020, it owned both the Sites themselves and the passive infrastructure thereon. In circumstances where APW was not advancing a positive case (e.g., that someone else owned the passive infrastructure), then there was no “compelling reason” why OT should be required to prove, again, that it satisfied the statutory purposes test.
2. ADR: The FTT also considered the effect of paragraph 33(3A) of the Code. The FTT determined this issue on the same basis as in EE Limited and Hutchison 3G UK Limited v APW Wireless II (UK) Limited BIR/00CN/ECR/2024/0623 & ORS (“Crownland Hall Farm”). The FTT held that the relevant P33 notices – which had all been served prior to 7 November 2023, when s.69 of the Product Security and Telecommunications Infrastructure Act 2022 came into force and the OFCOM prescribed from of notice changed to include information about ADR – did not become invalid on 7 November 2023. As in Crownland Hall Farm, the FTT held that there is no concept of “retrospective invalidity”, such that references can validly be made under paragraph 33 of the Code after 7 November 2023 in reliance on valid notices which were served prior to that date. In any event, paragraph 33 of the Code does not expressly stipulate the consequences of non-compliance, such that A1 Properties (Sunderland) Limited v Tudor Studios RTM Co Limited [2024] UKSC 27 applies. In that regard, the FTT held that the requirement to consider ADR at the point of application and the option for the other party to serve a notice if it wishes to engage in ADR both point firmly to the conclusion that a notice which does not comply with paragraph 33(3A) is not a nullity and does not preclude an application to the FTT under paragraph 33(5). Further, the FTT held that APW had not suffered any prejudice; rather, APW was “well aware” of ADR and the consequences of failing to engage. Moreover, the suggestion that OT could have simply started again by serving fresh notices would lead to “unwarranted opportunities for obstruction”.
3. Heads of Terms: The FTT gave detailed consideration to paragraph 33(2)(c) of the Code, which requires a P33 notice to set out details of, inter alia, the proposed modified terms. The FTT rejected APW’s novel argument that the notice must annex ‘an agreement which is capable of acceptance by the site provider or imposition by the Tribunal’. Rather, it is sufficient, for the purposes of paragraph 33(2)(c), to annex Heads of Terms (“HOTs”). The FTT held that it is “entirely standard practice” in all commercial sales and lettings for the parties’ respective surveyors to agree HOTs which, once agreed, are sent to the lawyers for the preparation of an engrossment of the lease for execution. The FTT could see “no objection whatsoever” to this standard commercial practice, not least because site providers will often be unrepresented and they are likely to find HOTs to be “more digestible” than the “legalese” of a (draft) formal lease.
The FTT found for OT on each of the preliminary issues. All 10 renewals will therefore proceed to trial in 2026.
Kester Lees KC and Taylor Briggs acted for the Claimant, instructed by Clive Chalkley and Minerva Christiaan-Rakus of Gowling WLG LLP. Toby Watkin KC and Fern Schofield acted for the Respondent, instructed by Thekla Fellas, Karen Mitchell and Mikki Redhead of Eversheds Sutherland LLP. A copy of the judgment can be downloaded below.
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