Can telecom operators assume that they have statutory protection? 

The Upper Tribunal’s recent decision in On Tower UK Limited v AP Wireless II (UK) Limited [2026] UKUT 245 (LC) serves as an important reminder that the presence of telecoms apparatus on land does not automatically mean that an operator benefits from protection under the Electronic Communications Code (the “Code”) or otherwise. 

The dispute concerned a telecommunications site at the Vulcan Arms in Wales. On Tower sought to renew its agreement under Part 5 of the Code, while AP Wireless argued that the agreement did not qualify as a Code agreement and therefore could not benefit from the Code’s renewal provisions. The agreement had been entered into in 2016, before the current Code came into force. 

The key issue was whether the rights granted to On Tower, a wholesale infrastructure provider (WIP), constituted Code rights when the agreement was originally granted. If they did not, the agreement could not benefit from the statutory renewal regime available under the current Code. 

AP Wireless (who were the landlord of the lease) argued that, for the Code to apply, the lease had to be in writing and granted for the statutory purpose (which is the wording in the legislation). Nowadays, the statutory purposes are defined as included an electronic communications network and an infrastructure system, so it captures both phone companies who run mobile networks and WIP’s who own radio sites but do not necessarily transmit any signals from it. But, in 2016, the definition of statutory purposes was narrower and did not include an infrastructure system.  

The Upper Tribunal agreed with AP Wireless and decided that, because On Tower was not running an electronic communications network, the lease had not been granted for a statutory purpose in 2016. As such, the Vulcan Arms agreement was not a Code agreement and could not be renewed under Part 5 of the Code. The Tribunal rejected arguments that the legislation should be interpreted more broadly to reflect modern telecoms infrastructure arrangements, finding that the statutory wording was clear. 

A key factor in the Tribunal’s decision was that the agreement had to be assessed by reference to the legal position at the time it was granted. Although On Tower later obtained broader Code powers relating to infrastructure provision, the Tribunal held that those later developments could not alter the character of the 2016 agreement or bring it within the scope of the Code’s renewal provisions. 

Why is this important? 

For many years, the industry has often proceeded on the basis that operators occupying telecoms sites will generally benefit from Code protection. This decision is a reminder that the position is not always straightforward, particularly where agreements pre-date the current Code. 

The case highlights the importance of examining how rights were originally granted and whether the operator had the necessary statutory authority at the time. The fact that telecoms equipment remains on a site, or that an operator has been in occupation for many years, will not necessarily determine whether the Code applies. 

For landowners, this may create opportunities to challenge assumptions made during renewal negotiations. Where an operator seeks to rely on Part 5 of the Code, it may be worth considering whether the existing agreement is in fact a Code agreement before accepting that the statutory renewal process applies. 

What should landowners look out for? 

For landowners, the judgment highlights the importance of scrutinising historic telecoms arrangements, particularly where: 

• the agreement predates 28 December 2017; 

• the agreement was granted to a wholesale infrastructure provider rather than a mobile network operator; 

• the operator is seeking to rely on Part 5 renewal rights; or 

• there is uncertainty regarding the operator’s Code powers when the agreement was entered into. 

In these circumstances, it may be necessary to consider not only the terms of the agreement itself, but also the statutory framework and the scope of the operator’s Code powers at the time the agreement was granted. 

The Birketts view 

The decision concerns a specific pre-2017 agreement and is not authority for the proposition that all historic WIP agreements fall outside the Code. However, it is another example of the courts closely scrutinising the foundations of Code rights rather than simply assuming that Code protection exists. 

The remaining appeals between On Tower and AP Wireless are still awaited and may provide further guidance on the treatment of historic telecoms agreements. For now, the decision is a useful reminder that, when dealing with older telecoms arrangements, the first question may not be what rights an operator has under the Code, but whether the Code applies at all. 

For further advice in relation to telecoms leases and agreements, please contact a member of Birketts’ telecommunications team.