Upper Tribunal dismisses Queen’s Oak Farm appeal
The Upper Tribunal has dismissed Icon’s appeal against the First-tier Tribunal’s decision in the Queen’s Oak Farm telecommunications case that Icon (itself a Code operator) did not have the requisite intention to redevelop under paragraph 21(5) of the Code.
The first instance judgment can be accessed here.
Icon’s case had been that it intended to erect its own mast on the site once it obtained vacant possession. At trial, the First-tier Tribunal had found that Icon’s subjective intention to erect a mast was conditional upon first attracting the Mobile Network Operators (MNOs) currently in situ on On Tower’s existing mast over to an Icon mast; and also that, on the balance of probabilities, the MNOs would not come across.
Icon sought unsuccessfully to overturn those two findings of fact.
In dismissing Icon’s appeal, the Upper Tribunal’s judgment reaffirms the primacy of first-instance findings of fact and emphasises that such findings are not to be disturbed absent a clear error of law.
On Tower’s additional arguments in support of the FTT Decision therefore did not fall to be determined. However, the Tribunal addressed obiter two of the four points raised by On Tower, dismissing the argument that Icon’s proposal fell foul of the principle in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62 and declining (in the interests of judicial comity) the invitation to revisit the Tribunal’s previous decision in Vodafone Limited v Icon Tower Infrastructure Limited [2025] UKUT 58 (LC) that erecting a mast was redevelopment of land for the purposes of paragraph 21, although the Tribunal noted that this is a matter worthy of consideration by the Court of Appeal on a future occasion.
Kester Lees KC and Imogen Dodds appeared on behalf of On Tower, instructed by Alicia Foo and Mairghread Yule of Pinsent Masons LLP, and Wayne Clark KC and Fern Schofield appeared on behalf of Icon, instructed by Thekla Fellas of Eversheds Sutherland International LLP.
A copy of the Upper Tribunal’s Decision can be found below.
Download DocumentBack to news listing
