Clarifying the meaning of ‘party to a code agreement’: On Tower UK Ltd v AP Wireless II (UK) Ltd

On 3 February 2026, the Court of Appeal dismissed an appeal from the Upper Tribunal (Lands Chamber) and provided welcomed clarity to the standing of operators assigned with the benefit of licence code agreements. 

In the judgment handed down by Lord Justice Newey, it was confirmed that such operators would be deemed a ‘party to a code agreement’, and therefore have standing to use the part 5 renewal procedure under the Electronic Communications Code.

What was the basis of the dispute?

On Tower was assigned the benefit of several telecommunications site licences and served notices under paragraph 33, seeking new agreements under the code.

The site provider, AP Wireless, argued that On Tower was not entitled to do so; it was an operator that did not bear the burden of the licence code agreements and therefore could not be deemed a ‘party to the code agreement’.

The Upper Tribunal held that On Tower was a party to a code agreement, but only because it had assumed ‘primary responsibility’ for bearing the burden of the licence obligations.

What did the Court of Appeal find?

AP Wireless appealed this decision to the Court of Appeal.

Although the appeal was dismissed, the Upper Tribunal’s reasoning was rejected; it held that an operator with merely the benefit of a code agreement is a ‘party to a code agreement’ under part 5 of the Electronic Communications Code. Parliament intended the code to facilitate the deployment and maintenance of communications infrastructure, and a narrow interpretation would undermine that purpose.

Moving forward: what are the practical implications?

• Benefit‑only operators can use part 5 of the Electronic Communications Code to seek modifications to their agreements, rather than having to make an application under part 4.
• Removal of procedural hurdles: operators are not required to enter into a deed of covenant or provide an indemnity beforehand.
• The decision simplifies portfolio management where code agreements have been acquired through assignment.

The decision provides certainty for both parties to code licence agreements. Establishing On Tower as a ‘party to a code agreement’ reinforces a practical interpretation of the Electronic Communications Code that supports communications providers in maintaining and developing their infrastructure. The Court of Appeal’s approach also reflects Parliament’s intention to preserve operators’ code rights in relation to expired agreements.