On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] EWCA Civ 43 (03 February 2026)

On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] EWCA Civ 43 (03 February 2026)

An operator who has acquired the benefit of a code agreement by assignment is a 'party to a code agreement' for the purposes of Part 5 of the Electronic Communications Code, even if it has not assumed the burden of the agreement. The statutory language and purpose support this interpretation, as it best facilitates the Code's aim of enabling operators to deploy and maintain infrastructure efficiently. There is no requirement in the Code for the assignee to have assumed the burden or to have entered into a deed of covenant with the site provider.

Citation
[2026] EWCA Civ 43
Parties
Claimant/respondent to the Appeal: ON TOWER UK LIMITED; Respondent in the Original References/appellant: AP WIRELESS II (UK) LIMITED
Jurisdiction
England and Wales
Judgment Date
03 February 2026
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal (lands Chamber)
Outcome
Appeal dismissed. The decision of the Upper Tribunal is upheld.
Legal Topics
Electronic Communications Code, Assignment of Code Rights, Interpretation of 'party to a Code Agreement', Landlord and Tenant Law, Licences and Leases, Statutory Interpretation
Telecommunications Law Property Law Contract Law Electronic Communications Code Assignment of Code Rights Interpretation of 'party to a Code Agreement' Landlord and Tenant Law Licences and Leases +1 more

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Parties

ON TOWER UK LIMITED

Claimant/respondent to the Appeal

AP WIRELESS II (UK) LIMITED

Respondent in the Original References/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal (lands Chamber)

Legal Issues

  1. 1 Whether an operator with only the benefit (and not the burden) of a code agreement is a 'party to a code agreement' under Part 5 of the Electronic Communications Code
  2. 2 Whether assumption of obligations (burden) is necessary for an assignee operator to be a 'party to a code agreement'
  3. 3 Proper interpretation of 'party to a code agreement' in the context of assignments of licences under the Code

Ratio Decidendi

An operator who has acquired the benefit of a code agreement by assignment is a 'party to a code agreement' for the purposes of Part 5 of the Electronic Communications Code, even if it has not assumed the burden of the agreement. The statutory language and purpose support this interpretation, as it best facilitates the Code's aim of enabling operators to deploy and maintain infrastructure efficiently. There is no requirement in the Code for the assignee to have assumed the burden or to have entered into a deed of covenant with the site provider.

Court Disposition

Appeal dismissed. The decision of the Upper Tribunal is upheld.

Orders

  • On Tower UK Limited is entitled to apply under paragraph 33 of the Code as a 'party to a code agreement'.
  • No requirement for assumption of burden or deed of covenant with site provider for such status.