In On Tower UK Limited v P Wireless II (UK) Limited (1) and Icon Tower Infrastructure Limited (2) the FTT on 29 October 2025 handed down a decision on the preliminary issue of 'intention to develop' relevant to whether an agreement should be imposed under paragraph 20 of the Electronic Communications Code (the Code).
The relevant site at Queens Oak Farm had been the subject of proceedings since 2020, and in 2022 the Supreme Court held that On Tower could seek imposition of code rights under Part 4 of the Code.
The case was handed back to the FTT to determine whether an agreement should be imposed under Section 20 of the Code by reference to three preliminary issues. Two preliminary issues were withdrawn, leaving the following to be decided: "whether the Second Respondent intends to redevelop all or part of the land to which the code right would relate, or any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".
The FTT found that the Second Respondent failed to establish that it had an intention to redevelop within the meaning of paragraph 21(5) of the Code.
A two-stage test has generally been applied in previous cases, whereby Respondents can only resist an application if they can demonstrate both that they have a reasonable prospect of being able to carry out their redevelopment project and that they have a firm, settled and unconditional intention to do so.
The FTT had regard to five issues in making its determination:
- Subjective test – firm and settled intention;
- Objective test – reasonable prospects of being able to bring about the relevant redevelopment;
- Conditional intention;
- Reasonable time; and
- The meaning of redevelop.
The FTT was satisfied on points (1), (3), (4) and (5), but found that the Second Respondent's subjective intention to redevelop was subject to other Mobile Network Operators (MNOs) moving over to the new tower so as to enable redevelopment of the subject site.
On the objective test (2), the FTT looked at the probability of other MNOs migrating to the new tower. It found that, on the balance of probabilities, the MNOs would not migrate to the Second Respondent's new tower. There was therefore no reasonable prospect of the Second Respondent being able to carry out its redevelopment, where the intention to redevelop was predicated on the MNOs relocating when this was in reality unlikely to happen. The intention to redevelop was not, therefore, on the balance of probabilities likely to be implementable.
This decision brings a conclusion to a long-running dispute concerning rights under the Code and provides useful guidance as to what the FTT will consider when determining a party's intention to redevelop under paragraph 21(5) of the Code.
