Icon Tower Infrastructure Limited v On Tower UK Limited [2026] UKUT 89 (LC)

[2026] UKUT 89 (LC)Case No LC-2025-765
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: LC-2019-826
Venue Royal Courts of Justice,
Between
ICON TOWER INFRASTRUCTURE LIMITEDAppellantON TOWER UK LIMITEDRespondent
Strand,
London,
WC2A 2LL
Friday, 27 February 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
ELECTRONIC COMMUNICATIONS CODE – NEW AGREEMENT – reference to the FTT of a notice seeking code rights given by the respondent operator to the appellant site owner under para 20 of the Code – hearing of preliminary issue as to whether site owner intending to redevelop all or part of the land to which code rights would relate – FTT determining appellant had failed to establish necessary intention to redevelop and could not rely upon para 21(5) so the test under para 21 for the imposition of a code agreement was met – jurisdiction of the Upper Tribunal to interfere with findings of fact by the FTT – meaning of ‘redevelop land’–whether replacement of a mast constitutes redevelopment of land–whether redevelopment conceived to prevent acquisition of code rights satisfying requisite intention– –paras 5, 20, 21, 31, 101, and 108 of Schedule 3A, Communications Act 2003
Land at Queen’s Oak Farm,Potterspury Lodge,Yardley Gobion,Towcester,Northamptonshire,NN12 7LLHis Honour Judge David Hodge KC10-12 February 2026Mr Wayne Clark KC and Ms Fern Schofield, instructed by Eversheds Sutherland (International) LLP for appellantMr Kester Lees KC and Miss Imogen Dodds, instructed by Pinsent Masons LLP for respondent© CROWN COPYRIGHT 2026The following cases are referred to in this decision:4-6 Trinity Church Square Freehold Limited v Corporation of the Trinity House of Deptford Strond[2016] UKUT 484 (LC), [2017] L & TR 25AP Wireless II (UK) Ltd v EE Ltd[2026] UKUT 45 (LC) (Equipoint)Cornerstone Telecommunications Infrastructure Ltd v Keast[2019] UKUT 116 (LC) (Penrose Farm)Cunliffe v Goodman[1950] 2 KB 237DAF Motoring Centre (Gosport) Limited v Hatfield and Wheeler Limited[1982] 2 EGLR 59Datec v Electronics Holdings Ltd v United Parcels Service Ltd[2007] UKHL 23, [2007] 1 WLR 1325EE Ltd v AP Wireless II (UK) Ltd [2024] UKUT 216 (LC)(Vache Farm)EE Ltd v Chichester[2019] UKUT 164 (LC), [2019] L & TR 21 (Chichester/Meyrick)EE Ltd v Stephenson[2021] UKUT 167 (LC) (Pendown Farm)Gatwick Parking Services Ltd v Sargent[2002] 2 EGLR 45, (2000) 80 P & CR D18Henderson v Foxworth Investments Limited[2014] UKSC 41, [2014] 1 WLR 2600Humber Oil Terminals Trustee Limited v Associated British Ports[2012] EWCA Civ 596, [2012] L & TR 27, CA affirming [2011] EWHC 2043 (Ch), [2011] L & TR 27Lightcliffe and District Cricket and Lawn Tennis Club v Walton[1978] 1 ELGR 35Macey v Pizza Express Restaurants Ltd[2021] EWHC 2847 (Ch)MVL Properties (2017) Limited v The Leadmill Limited[2025] EWHC 349 (Ch)R v Chief Constable of Greater Manchester Police[2018] UKSC 47, [2018] 1 WLR 4079S Franses Ltd v Cavendish Hotel (London) Ltd[2018] UKSC 62, [2019] AC 249 (Franses)Spirit Pub Company (Managed) Ltd v Pridewell Properties (London) Ltd, unrep., 14 March 2025 (Mayor’s & City of London Court)Subesh v Secretary Of State for Home Department[2004] EWCA Civ 56, [2004] Imm AR 112Todd v Adams[2002] EWCA Civ 509, [2002] CLC 1050Vodafone Limited v Icon Tower Infrastructure Limited[2025] UKUT 58 (LC) (Steppes Hill Farm)Walter Lilly & Co Ltd v Clin[2021] EWCA Civ 136, [2021] WLR 2753Westminster City Council v British Waterways Board[1985] AC 676Date 2026-02-27

Introduction

[1]This appeal to the Tribunal raises issues concerning the jurisdiction of the Tribunal to interfere with findings of fact by the First-Tier Tribunal; whether a site owner intends to redevelop all or part of the land to which code rights would relate in the context of the ground of opposition to an application by an operator for the conferral of such rights under paragraph 21(5) of the Electronic Communications Code (the Code); the meaning of the redevelopment of land in this context; whether the replacement of a mast constitutes such redevelopment; and whether redevelopment conceived purely to prevent the acquisition of code rights satisfies the requisite intention.[2]This is the Tribunal’s decision on an expedited appeal from a decision of the Property Chamber of the First-Tier Tribunal (Judge D Jackson and Mr RP Cammidge FRICS), dated 29 October 2025, determining the sole remaining preliminary issue on an application by On Tower UK Limited (On Tower), the respondent to this appeal, for an order under paragraph 20 conferring code rights under Part 4 of the Code.[3]The appellant, Icon Tower Infrastructure Limited (Icon), is the freehold owner of a rural greenfield site at Queen’s Oak Farm, approximately 6km from Towcester, in the County of Northampton. Icon is both an operator for the purposes of paragraph 2 of the Code, and also a wholesale infrastructure provider. It is a subsidiary of AP Wireless (UK) Limited (APW), which is itself a subsidiary of Radius Global Infrastructure Inc (Radius). Icon is represented on this appeal by Mr Wayne Clark KC and Ms Fern Schofield (of counsel).[4]On Tower is part of the Cellnex Telecom group. It is holding over as the tenant at will of a 22.5m high electronic communications mast at the south-western corner of Icon’s site. It too is an operator and a wholesale infrastructure provider; and its mast hosts the major broadband mobile network operators (MNOs). On Tower is represented on this appeal by Mr Kester Lees KC and Miss Imogen Dodds (also of counsel).[5]By its substantive claim, On Tower seeks the imposition of a new agreement under Part 4 of the Code. Icon wishes to install its own electronic communications mast at the site and therefore resists the imposition of any code agreement in favour of On Tower on the ground contained in paragraph 21(5) of the Code: that Icon intends to redevelop the land in question. Icon’s ground of objection was determined as a preliminary issue.[6]The FTT determined that issue in favour of On Tower. It held that Icon had failed to establish that it had an intention to redevelop its mast within the meaning of paragraph 21(5) of the Code so Icon could not rely on that paragraph. Since it was no longer disputed that On Tower could satisfy the other two pre-conditions in paragraph 21 of the Code, it followed that the test under paragraph 21 of the Code for the imposition of a code agreement was met.[7]The gist of the FTT’s decision is to be found in its reasons, dated 3 December 2025, for granting permission to appeal to the Tribunal, as follows: Before us [Icon] intended ‘going over’ the existing On Tower site i.e. once vacant possession has been obtained and the On Tower mast removed [Icon] would erect its own mast on the same site. In summary the Tribunal found that [Icon] could not rely on paragraph 21(5) of the Code because its redevelopment intention was investment led as approved by the Investment Committee of its parent board Radius Global Infrastructure Inc. [Icon’s] redevelopment intention is financially dependent on the migration of MNOs to its new mast. We found on the balance of probabilities that the most likely outcome is that the MNOs will not migrate to [Icon's] new tower.[8]Icon now appeals from that decision. It contends that the FTT ought to have concluded that Icon intends to develop all or part of the land to which On Tower’s claim for code rights relates; and that such intention is not conditional upon first securing the MNOs to migrate to Icon’s new tower. There was nothing which could properly have led the FTT to conclude that Icon’s development intention was conditional upon securing MNOs in advance. Icon has built speculatively before; it intends to build speculatively here; and all the evidence before the FTT pointed to that conclusion. To the extent that the FTT differed from that outcome, its decision is unsustainable. Alternatively, considerations of commercial pragmatism should have led the FTT to conclude that Icon had reasonable prospects of establishing that the MNOs would migrate to its proposed new mast. Given the low threshold test, the FTT ought to have found that Icon did have reasonable prospects of MNOs coming over. As a result, On Tower’s claim to code rights ought to have been dismissed.[9]On Tower opposes the appeal. It invites the Tribunal to uphold the FTT’s decision, primarily on the same basis as the FTT; namely, that Icon’s intention was conditional on the MNOs migrating to its proposed new mast, and there was no reasonable prospect of that happening. The evidence was such that the FTT had no choice but to make those findings. In any event, the FTT cannot be said to have been ‘plainly wrong’. Alternatively, On Tower invites the Tribunal to uphold the FTT’s decision on alternative grounds. Two of these raise particular issues of general application. On Tower asserts that the FTT was wrong to conclude that the taking down of one mast, and the construction of another, constitute the ‘redevelopment of land’ for the purposes of paragraph 21(5). On Tower contends that the replacement of a mast is not the ‘redevelopmentof land’, as required by that sub-paragraph. Further, On Tower contends that the FTT misapplied the ‘acid test’ to be derived (in the context of the redevelopment ground of opposition to the grant of a new business tenancy under s. 30(1)(f) of the Landlord & Tenant Act 1954) from the Supreme Court decision in S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62, [2019] AC 249 (Franses), as adapted and applied to paragraph 21(5) of the Code by the Tribunal in EE Ltd v Chichester [2019] UKUT 164 (LC); [2019] L & TR 21 (variously Chichester or Meyrick) at [39]. This holds that: A redevelopment conceived purely to prevent the acquisition of code rights, which the relevant person would not pursue if code rights were not sought, will not satisfy the test in para.21(5) for the reasons given by the Supreme Court in S Franses Ltd. Such an intention is not the unconditional intention that Parliament sought to protect. On Tower contends that, on the evidence, Icon’s redevelopment proposal was put together in response to On Tower’s application for code rights. It was a reactive plan designed to defeat code rights. It therefore falls foul of the Franses principle.

Factual background

[10]The genesis of Icon’s proposal to redevelop the site of On Tower’s mast is explained in the appellant’s skeleton argument. Following the introduction of the Code, and in particular the ‘no network’ valuation regime, the business of collecting rental income streams from telecommunications sites has become less profitable. Following the recent decision of the Tribunal in EE Ltd v AP Wireless II (UK) Ltd [2024] UKUT 216 (LC) (Vache Farm), which reset the rental level for an unexceptional, rural greenfield site under the Code at £1,750 per annum, Icon perceives that the imposition of a code agreement in favour of On Tower would give rise to a nil % return. Icon is an emerging wholesale telecommunications infrastructure provider which is seeking to break into the market as a new entrant. By installing and marketing its own infrastructure, which can be charged out at non-code rates (in the same way as On Tower does), Icon hopes to derive a profitable return from its sites. That is because the exclusion of electronic communications apparatus from the definition of ‘land’, in paragraph 108 (1) of the Code, enables wholesale infrastructure providers to charge mobile network operators rentals greatly in excess of restricted code levels. Icon considers that its chances of attracting MNOs to its sites are greater where there is less competition. As a result, Icon’s preference is to ‘go over’ existing sites, i.e. to remove the existing masts and replace them with its own infrastructure. Until the recent decision of the Tribunal in Vodafone Limited v Icon Tower Infrastructure Limited[2025] UKUT 58 (LC) (Steppes Hill Farm), a termination case, which was handed down on 20 February 2025, there was doubt as to whether ‘going over’ could satisfy the meaning of ‘redevelopment’ under the Code. For that reason, Icon had previously considered an alternative location for its proposed new mast within its site, lying approximately 100m to the east of On Tower’s mast, which would have been built out ‘alongside’ that existing mast. Following the decision in Steppes Hill Farm, Icon committed itself to ‘going over’ the site of On Tower’s mast, i.e. building its new mast on that site. That is the development which Icon seeks to undertake.

Legal background

[11]Whilst this litigation proceeds under the Code, it is common ground that the legislative scheme is similar in shape to, and is informed by, the business tenancy legislation contained within Part II of the Landlord & Tenant Act 1954. Although, strictly, Icon is resisting the imposition of a new code agreement, rather than seeking to bring an existing code agreement to an end (in reliance on paragraph 31(4)(c) of the Code), the issues are similar in shape and in scope to a ground (f) termination claim under the 1954 Act.[12]The ground of opposition under s. 30(1)(f) of the 1954 Act is available where: … on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding. Paragraph 21(5) of the Code applies where the court: … thinks that the relevant person 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.[13]It should be noted that paragraph 21(5) is in similar terms to paragraph 31(4)(c) of the Code, which sets out one of the grounds on which a site owner may rely in a notice of termination to bring an existing code agreement to an end, namely: … that the site provider intends to redevelop all or part of the land to which the code agreement relates, or any neighbouring land, and could not reasonably do so unless the code agreement comes to an end.[14]The similarity to the 1954 Act is acknowledged in the authorities. This was explained by the Tribunal in Chichester at [38] thus: Paragraph 21(5) was explicitly modelled, by the Law Commission, on s. 30(1)(f); the difference in wording is trivial and is dictated by its context … However, we agree … that the case law associated with s. 30(1)(f) is not binding authority in the context of the Code and of paragraph 21(5). Clearly the Code, new as it is, must be looked at with a clean slate and as a fresh start. The principles applicable to the 1954 Act should be adopted where they are relevant, although we are mindful of the need to be aware of the different context in Code cases. Not all principles will be relevant and the factual background will have an effect on this; issues of timing, for example, need to be carefully considered.[15]Where appropriate, and suitably modified, principles applicable under the 1954 Act are to be applied under the Code. These include the requirements that:(i) where intentions have changed over time, it is the intention at the date of the hearing that is relevant;(ii) the defence in paragraph 21(5) is not made out unless the relevant person has a firm intention to carry out the redevelopment, and this is something that they have a reasonable prospect of being able to bring about of their own volition; and(iii) the relevant person’s intention must be unconditional, in the sense explained in Franses, so that a redevelopment conceived purely to prevent the acquisition of code rights, which the relevant person would not pursue if such rights were not being sought, will not satisfy the test in paragraph 21(5).[16]To succeed at trial, and largely mirroring the applicable test under ground (f) in s. 30(1) of the 1954 Act, Icon needed to establish that it intended, as at the date of the hearing in the FTT, to carry out the work upon which it relied (namely, erecting its own mast on its site). Intention has three components:(1) The subjective element: Icon had to prove that it had a firm and settled intention to carry out the work, and that this was not likely to change.(2) The objective element: Icon had to prove that there was a reasonable prospect of being able to bring about the relevant redevelopment by its own act or volition, and surmounting any hurdles or pre-conditions.(3) The requirement of unconditionality, as established in Franses: Icon had to establish that it intended to do the same works, even if On Tower had left the site voluntarily. On Tower emphasises that it was Icon which bore the burden of establishing that it had the requisite intention to redevelop. On Tower had no need to prove anything. It merely had to raise challenges which called for an answer from Icon in order that Icon might discharge the burden that lay upon it: see MVL Properties (2017) Limited v The Leadmill Limited [2025] EWHC 349 (Ch) at [10a] per Norris J. On Tower also points out that (rightly) there is no suggestion from Icon that the FTT misapplied the law on intention.

The hearing before the FTT

[17]The sole remaining preliminary issue was heard in Birmingham over six days between Monday 29 September and Tuesday 7 October 2025. On the first day, the FTT heard oral openings from leading counsel for both parties. It then heard oral evidence from Mr Ralph Freemantle, Icon’s head of structural design. On Day 2, Mr Roger Kay, Icon’s acquisitions director, was examined in chief and cross-examined. He had made two witness statements, dated 28 April and 27 August 2025. On Day 3, Mr Kay was re-examined, and then answered questions from the FTT. The FTT then received oral evidence from Mr Simon Robinson, On Tower’s head of infrastructure. On Tower also relied upon two witness statements from Mr Frederick Ansell, its asset protection manager. Since his evidence was agreed, he gave no oral evidence at the hearing. On Day 4, the FTT received oral evidence from each party’s planning experts. The parties ultimately reached agreement on expert technical telecommunications evidence, and neither of their experts gave oral evidence at the hearing.[18]The FTT adjourned at about 12.40 on the afternoon of Day 4 for the parties’ counsel to prepare written closing submissions on the evidence (supplementing their original trial skeletons). During this adjournment, Icon produced some new material, including the minutes of a meeting of APW’s board held remotely on the evening of Day 4 (Thursday 2 October) and an email sent at about the same time formally confirming the Radius Investment Committee’s approval for the redevelopment of the site, including an increase in the incentive sum to be paid to any incoming MNOs and a corresponding reduction in the internal rate of return (IRR), as shown in a revised development analysis (referred to as a Tower Return Model or TRM).[19]Oral closing submissions were presented to the FTT, after the weekend, on Days 5 and 6 of the hearing, concluding shortly after 4.00pm on Day 6.

The FTT’s decision

[20]The FTT’s written decision bears the sole name of Judge D Jackson. It comprises 160 numbered paragraphs, covering 58 pages. It was handed down on 29 October 2025, about three weeks after the conclusion of the hearing, so it is reasonable to infer that it must have been written whilst the evidence and submissions were still fresh in the judge’s mind. The first 54 paragraphs address the background to the application and the preliminary issue, including the evolution of Icon’s present development proposal, and the procedural history. They also address the applicable planning and technical communications issues. These are followed (at [55-63]) by a statement of the law (with references to Chichester/Meyrick, Steppes Hill Farm, and MVL Properties, previously cited) and the five issues that fell to be determined, as follows:(1) Subjective test – intention;(2) Objective test - reasonable prospects;(3) Conditional intention – Franses;(4) Reasonable time; and(5) The meaning of redevelop.[21]Before proceeding to determine those issues, the FTT considered the evidence of the witnesses. The evidence of Mr Kay, and the various board minutes and other documents adduced in evidence, are reviewed at [64-100]. That review contains nothing which is critical of Mr Kay’s honesty or credibility. Indeed Mr Kay is said (at [93]) to have been “extremely frank in his evidence”. The same paragraph records: Mr Kay accepted that there was a possibility that the MNOs would find an alternative location. In such circumstances Mr Kay said that Icon would proceed with its redevelopment even if none of the 3 carriers come across. It would do so as part of its plans to break into the market. There is also benefit in building a ‘naked’ tower because the site is more valuable ‘if you own the steel sitting on it’. At [100] the FTT notes that: Icon has built towers speculatively. It has built only 6 towers, 5 of which still stand unoccupied. Breaking into the market has proved difficult. Even where there are coverage gaps MNOs will not come over. Only one of Icon’s towers is occupied. That occupier is Airwave … There has been no interest whatsoever in the other speculative builds. Icon criticises the FTT for failing to mention what Mr Kay said at paragraph 17 of his 1st witness statement, and the last sentence in particular: In essence, Icon want to make sites as good as they can be by investing from the outset to promote longevity, increase speed to market, making structures available on a first come, first served basis and enhancing coverage and capacity within the market. Icon says that this – and especially the phrase ‘on a first come, first served basis’ - is an important piece of evidence, which was not challenged in cross-examination, and which the FTT appears to have ignored. On Tower responds that Icon is now seeking to exaggerate the importance of this short piece of evidence, which featured neither in Icon’s opening skeleton, nor in its written or oral submissions. Mr Lees KC says that this highlights the dangers of casting around to find evidence to support Icon’s case after the conclusion of the hearing before the FTT.[22]The FTT summarises the evidence of Mr Freemantle and Mr Robinson at [101-107] and [108-112] respectively. At [107] the FTT records Icon’s preference “for On Tower to remove its concrete base so that Icon can install a new base with a stub on which to mount the Swann tower”. At [109] the FTT notes Mr Robinson’s confirmation that “On Tower would remove the concrete base at the site unless any agreement to the contrary was reached with Icon”.[23]At [113-124] the FTT addresses the issue of subjective intention. The FTT cites Asquith LJ’s well-known observations in Cunliffe v Goodman [1950] 2 KB 237 at 253-4 about:(1) an ‘intention’ connoting a state of affairs which the party ‘intending’“does more than merely contemplate”; rather, it connotes a state of affairs which, “on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition”; and(2) the need for the development project to move “out of the zone of contemplation — out of the sphere of the tentative, the provisional and the exploratory — into the valley of decision”. The FTT cites the undertakings approved by Icon’s board on 22 September 2025 and by the board of its parent company, APW, on 2 October 2025. The FTT notes that APW’s accounts and bank statements show that it has more than sufficient funds to make available all such funds as may be necessary to support Icon’s undertaking. At [119] the FTT declares itself “satisfied that we can accept the undertakings proffered on the basis of our powers to transfer to the Upper Tribunal for enforcement”. Having noted (at [120]) that Icon is an operator pursuant to an OFCOM direction, and being satisfied that the proposed undertaking is backed financially by the APW undertaking, at [121] the FTT “therefore accept both the Icon and APW undertakings as evidence, although not conclusive evidence, of the genuineness of Icon’s intention to commence and complete its proposed redevelopment”. On Tower states that it is not clear that the FTT ever actually accepted the undertakings that had been proffered. The Tribunal is satisfied, from what is said in these paragraphs of its decision, that the FTT would have done so had it found that Icon had established the necessary intention to redevelop for the purposes of paragraph 21(5) of the Code.[24]The FTT sets out its conclusions on subjective intention at [121-4] as follows (with [123] merely reproducing the findings at [308] of Steppes Hill Farm):121. In determining Icon’s subjective intention, we must first determine what that intention actually is. Our finding is that Icon’s settled intention is investment led. It is based on the business plan contained in the Tower Return Model dated 21 August 2025 [B441], blended Internal Rate of Return [B442] and the Site Candidate Information Pack of August 2025 [B445-448] which was approved by the Radius Investment Committee on 21 August 2025 [B449-50] and by the Icon Board on 22 August 2025 [B475-476].122. There is no suggestion from any of the Icon, APW or Radius decision makers that Icon’s redevelopment intention involves the building of ‘a naked’ tower i.e. a tower with no carriers. There is no support from any of the Icon, APW or Radius decision makers that Icon’s plans for the Site are as a ‘start up’ or ‘seed’ capital. There is no support for Mr Kay’s suggestion that there is benefit in building a ‘naked’ tower because the site is more valuable ‘if you own the steel sitting on it’. We find no support in the Board minutes of Icon nor from the Radius Investment Committee that business plan was to build a naked tower for marketing purposes. There is no support for Mr Kay’s suggestion that Icon will proceed with its redevelopment if the 3 carriers do not come across. Nor is there any support for the contention that the business case was based on a naked tower for 2 years with the first carrier coming on in 2027 and a second carrier in 2029. We find that there is no realistic prospect of MNOs, having decamped to a new site, would seek to return to Queens Oak Farm after 2 or even 4 years. Those alternative business cases are mere contemplation on Icon’s part, containing too many hurdles and events outside of Icon’s control. Above all they lack any commercial merit. We find that Icon’s redevelopment is wedded to MNO’s migrating from On Tower. … 124. Having discounted Mr Kays ‘naked tower’, value of the land with steel on it and carriers not coming across until 2027 and 2029 we are left with the investment led business case set out in the SCIP. The SCIP is based on financial modelling based on 3 carriers coming across in 1 month, 2 months and 3 months. It is an investment led strategy to provide a return for Icon, APW and Radius on their investment. The commercial objectives behind the SCIP are clear and we find that Icon has established a firm and settled intention to carry out its redevelopment as set out in the SCIP approved by the Radius Investment Committee. I understand this to mean that the FTT found that Icon had established a firm and settled intention to redevelop, but only if the three MNOs agreed to migrate to the new tower, and not to build a new tower without any MNOs coming across.[25]The FTT discusses the objective test (reasonable prospects) at [125-138] of the decision. It records that there is no planning impediment to redevelopment, and that Icon has funding in place. The FTT acknowledges that Icon bears the burden of satisfying it that it has reasonable prospects of being able to bring about the redevelopment. It cites observations of Laws LJ in a 1954 Act case, Gatwick Parking Services Ltd v Sargent [2002] 2 EGLR 45, (2000) 80 P & CR D18 that: … the hurdle to be surmounted by the appellant under s. 30(1)(g), in the light of the authorities on the subject, is by no means a high one. It does not have to demonstrate a balance of probability that [planning] permission will be granted. He has to show that there is a real, not merely a fanciful, chance. By reference to observations of Lord Bridge in Westminster City Council v British Waterways Board [1985] AC 676 at 680-682, the FTT considered that it was required to assess the objective element on the assumption that Icon is entitled to possession of the site, and that On Tower’s tenancy at will has already determined. The task before the FTT is said to be that identified by Rimer LJ in Humber Oil Terminals Trustee Limited v Associated British Ports [2012] EWCA Civ 596, [2012] L & TR 27 at [25] as follows: The judge had to assess the objective element of ABP’s [Landlord] stated intention by making the required statutory assumption that it is ABP and not HOTT [Tenant] that is in possession of the premises; and therefore necessarily on the assumption that HOTT’s tenancies had determined. That is what he did and he made his findings of fact referred to above as to the probabilities of what would then happen. At first instance ([2011] EWHC 2043 (Ch), [2011] L & TR 27) Vos J (whose decision was affirmed on appeal) had held: I do not need to decide what will happen, only on a balance of probabilities what is the most likely outcome” (as cited by Rimer LJ at [19]).[26]The FTT discusses the position of the MNOs. Having noted the absence of any direct evidence from them, the FTT records that it has “sufficient secondary evidence from which we can safely infer the likely actions of the MNOs”. Having set out the competing factors for and against their migration to Icon’s proposed new tower (at [136-8]), the FTT concludes: We find on the balance of probabilities that the most likely outcome is that the MNOs will not migrate to Icon’s new tower. Icon has failed to demonstrate that there is a reasonable prospect that MNOs will migrate to its new tower. We therefore find that Icon does not have a reasonable prospect of being able to carry out its redevelopment. On Tower emphasises that the FTT not merely concluded that Icon had failed to establish a reasonable prospect of the MNOs migrating (as the Tribunal had found in Steppes Hill Farm). Rather, it went further and found, on the balance of probabilities, that the MNOs would not migrate to Icon’s proposed new tower.[27]The FTT addresses the issue of conditional intention at [139-144]. It cites from Franses, Chichester/Meyrick, and Steppes Hill Farm. It concludes (at [143]) as follows: We accept Mr Clark’s arguments that Icon makes no secret of its desire to better its position by removing a competitor from the Site. Mr Kay said as much in his evidence. That is a perfectly legitimate business aim and recognised as such in Steppes Hill Farm. The consequence of Icon’s redevelopment is that On Tower is prevented from acquiring Code rights – but that is a merely collateral effect. The pivot by Icon in 2025 to going over the On Tower Site was entirely consistent with its investment led strategy as set out in the SCIP. Applying the acid test as adopted in Meyrick we find that Icon would intend to do the same works even if Icon did not seek Code rights. The second reference to ‘Icon’ in the final sentence is clearly an error for ‘On Tower’.[28]The issue of reasonable time is addressed at [145-8] of the decision. The FTT cites Steppes Hill Farm at [277] as authority for the proposition that redevelopment must be commenced within a reasonable time of termination of the code agreement. The FTT notes that the joint consensus of the technical experts is that the redevelopment will take 12 weeks at best (if re-using the existing base), and approximately 26 weeks (if new foundations/base are required and a temporary site is not acceptable to the MNOs). Having addressed the “ifs, whens, and maybes”, the FTT found that:(1) it was likely that technical issues would be resolved during the 12/26 week period proposed by the technical experts; and(2) construction of the new tower could be completed within a reasonable time.[29]The FTT discusses the meaning of ‘redevelop’ at [149-157]. The FTT notes the submissions of Mr Lees KC for On Tower that “the natural meaning of the word ‘redevelopment’ connotes a change to what was on the land before. Icon is merely replacing existing ECA. The net result is the same. Replacement is not redevelopment.” The FTT also records Mr Lees KC’s reliance on paragraphs 5, 101, and particularly 108 of the Code, excluding ‘electronic communications apparatus’ from the definition of ‘land’ and the width of the definition of such apparatus. The FTT cites the competing policy considerations identified by both leading counsel. Despite Mr Lees KC’s attempt to distinguish Steppes Hill Farm, on the basis that it concerned paragraphs 31(4)(c) and (d), rather than paragraph 21(5), of the Code, the FTT decided to follow what had been said in that case at [260]. The FTT found that the “taking down of one mast and the construction of another mast is redevelopment under paragraph 21(5) of the Code”.

The appeal and cross-appeal

[30]Icon advances no less than six grounds of appeal. It relies upon them both independently and cumulatively for the purposes of appealing the FTT’s decision. The first five all relate to the issue of subjective intention. They challenge the FTT’s finding that Icon had a firm and settled intention to build a new tower on the site only if MNOs would migrate over, i.e. that Icon’s intention was conditional. Ground 6 challenges the FTT’s finding on objective intention that, on the balance of probabilities, MNOs would not migrate to Icon’s proposed new mast.[31]Icon’s six grounds of appeal are as follows:(1) The FTT erred in finding (at [122]) that "there is no suggestion from any of the Icon, APW or Radius decision makers that Icon's redevelopment intention involves the building of a ‘naked’ tower i.e. a tower with no carriers”. That finding: (a) was reached without any, or any proper, regard to the Icon undertaking and/or its immediate parent’s undertaking; and/or (b) was reached without any, or any proper, regard to the evidence provided on behalf of Icon during the course of the trial; and/or (c) was a conclusion which no reasonable judge could have reached; and/or (d) was plainly wrong; and/or (e). was rationally unsupportable. If permission is granted, Icon will contend that, based on the undertaking given, and/or the evidence, the FTT should (and could only reasonably) have found and decided that the appropriate intention held by Icon was one to build out unconditionally, i.e. without any, or any immediate, requirement for the MNOs to migrate to the new tower.(2) The FTT’s conclusion that the boards of Icon and/or APW were “wedded to MNOs migrating from On Tower” was logically or rationally unsupportable.(3) The FTT erred in reaching the various findings at [122] that, in essence: (a) there was no evidence to support the build out of a ‘naked tower’, and (b) there was no support in the evidence of Mr Kay that Icon would proceed with the development if no MNOs were to migrate to the new tower. Those findings were contrary to: (i) the Icon undertaking, and/or (ii) the context in which that undertaking was given, and/or (iii) the oral evidence given by the witnesses called, in particular Mr Kay, on behalf of Icon.(4) Having found (at [120]) that, by reference to the Icon undertaking, it was satisfied as to the “genuineness of Icon's intention to commence and complete its proposed redevelopment”, the FTT should (and could only reasonably) have found and decided that the appropriate intention held by Icon was one to build out unconditionally, as was self-evident from the terms of the Icon undertaking itself. Accordingly, the decision by the FTT was plainly wrong or rationally unsupportable.(5) Having concluded (at [121]) that “Icon's settled intention is investment led”, the FTT erred in concluding (expressly or impliedly) that it necessarily followed that the commencement and completion of the construction of the new tower was conditional upon the MNOs migrating. In particular: (a) It did not follow that an investment led proposal was necessarily one which was conditional upon the MNOs migrating, and would only be implemented if the MNOs did migrate. The conclusion so reached by the FTT was a conclusion that no reasonable judge could have reached on the evidence and/or was plainly wrong and/or was rationally unsupportable. (b) The upshot of the FTT’s finding that, rather than being a forecast, the financial proposals imposed conditions precedent to Icon’s intention to commence and complete the redevelopment of the On Tower site was wrong. [I have sought to redraft this sub-ground so as to make sense of the text supplied by Icon.] (c) The FTT failed properly, or at all, to have regard to the fact that an investment led approach, as reflected in the financial proposals, was an aspiration or a desire, and not a guarantee of a return. The FTT ought to have found that the financial proposals, as with any such financial documentation, were identifying an investment projection, reflecting an outcome which was desired but could not be guaranteed to come to fruition. In those circumstances, the FTT ought not to have (and could not have reasonably) determined that Icon’s intention was a conditional one. The Judge should (and could only reasonably) have found and decided that, given that the desired outcome could not be guaranteed, as was the case with any commercial venture, that did not, and could not (reasonably or at all), lead to a conclusion that Icon’s intention was a conditional one.(6) The FTT was wrong to conclude (at [138]) that Icon did not demonstrate that there was a reasonable prospect that the MNOs would migrate to the new tower. In particular: (a) The FTT failed to give any, or any proper, weight to the assumption that Icon had obtained vacant possession in determining whether or not there was a reasonable prospect that the MNOs would be likely to migrate. (b) The FTT failed to give any, or any proper, weight to the absence of evidence from, or on behalf of, the MNOs as to whether they would migrate to the new tower. The FTT should in the circumstances, and on the evidence before it, and could only reasonably, have found and decided that Icon had a reasonable prospect of the MNOs migrating to the new tower. Accordingly, the decision by the FTT was plainly wrong or rationally insupportable.[32]Although Icon has presented its first five grounds of appeal separately, On Tower submits that they all really amount to different attacks on the same single finding of fact: that Icon’s subjective intention was conditional upon MNOs moving to Icon’s proposed new mast. On Tower’s position is that the evidence compelled such a finding; but, in any event, it was a finding which the FTT was entitled to make. The same applies to the FTT’s finding that, on the balance of probabilities, MNOs would not migrate to Icon’s new tower. The FTT was bound to make the findings which it did; but, on any view, the Tribunal cannot properly find that those were findings which no reasonable judge could make on the evidence that was before the FTT.[33]On Tower’s cross-appeal only falls to be considered should the Tribunal be minded to allow Icon’s appeal. In this event, On Tower invites the Tribunal to uphold the FTT’s decision (that Icon had failed to satisfy paragraph 21(5)) for four different, or additional, reasons, as follows:(1) The replacement of a mast is not the redevelopment of land, as required by paragraph 21(5). The natural meaning of the word ‘redevelopment’ connotes a change from what was on the land before, and not the mere replacement of existing with new electronic communications apparatus. The wording of paragraph 21(5) is notably different from ground (f) in s. 30(1) of the 1954 Act. On Tower’s proffered construction is also said to be consistent with, and dictated by the policy drivers behind, the Code. As the Tribunal (Judge Elizabeth Cooke and Mr A J Trott FRICS) recognised and explained in Chichester/Meyrick at [7]: "It is unlikely that the Law Commission contemplated redevelopment of this nature when it recommended a provision to the effect of para. 21(5).” Further, On Tower’s interpretation of paragraph 21(5) ensures that there is no internal inconsistency within the Code. Paragraph 108 has been carefully drafted to maintain a distinction between ‘land’ on the one hand and ‘electronic communications apparatus’ on the other. This was said by the Government to be “a fundamental concept for the Code”, which “underpins how the revised Code will work in practice”. Moreover, paragraph 101 provides that “the ownership of property does not change merely because the property is installed on or under, or affixed to, any land by any person in exercise of a right conferred by or in accordance with this code”. If the Tribunal were to hold that replacement of electronic communications apparatus (which is itself a code right) constitutes work to redevelop land, that would be inconsistent with that distinction. On Tower points out that the only case which has considered this issue as regards paragraph 21(5) is Chichester/Meyrick (at [5-7]), where the Tribunal assumed, without full argument, that the replacement of electronic communications apparatus did constitute redevelopment (as was noted in Steppes Hill Farm at [260]). In that case, it was held (at [260-269]) that the replacement of a mast could constitute redevelopment under paragraph 31(4)(c). Whilst On Tower contends that Steppes Hill Farm is informative in considering the test under paragraph 21(5) more broadly, it nevertheless submits that in respect of this particular issue, the Tribunal took a wrong turn, as did the FTT in this case (at [156]) when it followed Steppes Hill Farm. On Tower reminds the Tribunal that it is not bound by its own decisions: see 4-6 Trinity Church Square Freehold Limited v Corporation of the Trinity House of Deptford Strond [2016] UKUT 484 (LC), [2017] L & TR 25.(2) When considering whether there was a reasonable prospect of MNOs migrating to Icon’s new mast, the FTT proceeded on the erroneous assumption that Icon was already in possession of the site as at the date of the hearing (although it nonetheless reached the correct conclusion that the MNOs would not do so). This mistaken assumption arose because, at Icon’s invitation, the FTT misunderstood (or misapplied) the 1954 Act decision in Westminster City Council v British Waterways Board [1985] AC 676. The FTT should instead have made its determination on the assumption that Icon would have vacant possession at such time as it would be entitled to enforce the removal of On Tower’s apparatus under paragraph 40 of the Code (including the reasonable notice period required under paragraphs 40(3) and (4)).(3) Having found that Icon’s intention was conditional on the MNOs migrating, and in subsequently considering whether Icon’s intended works would commence within a reasonable time, the FTT failed to consider the length of time it would take to conclude the commercial negotiations with the MNOs This was necessarily required, given the FTT’s finding on conditionality. Instead, the FTT determined the issue of timing on the assumption that Icon’s negotiations with the MNOs had already concluded. That was an error of law which infected the FTT’s finding that Icon could commence the works within a reasonable time. Had the FTT had regard to the length of time it would take to conclude negotiations with the MNOs, it could only have concluded that Icon had not established that its intended works could commence within a reasonable time, which (by reference to case law under the Landlord and Tenant Act 1954 is no more than a few months). On Tower recognises that this ground of the cross-appeal will only become relevant should Icon fail on its first five grounds, so that it becomes necessary to consider whether there was a reasonable prospect of Icon satisfying the condition of the MNOs migrating over to its new mast.(4) In considering whether Icon’s intention was unconditional in the Franses sense, the FTT applied the wrong test at [143]. Instead of applying the ‘acid test’ of whether Icon would intend to build a tower upon On Tower’s site if it were not asserting code rights, the FTT considered Icon’s motives, and in particular whether Icon had a legitimate business aim in building upon On Tower’s site. That was an error of law. Had the FTT applied the correct test, it could only have concluded that Icon would not intend to build a new tower upon On Tower’s site if it were not asserting code rights, and therefore that its intention was impermissibly conditional. In concluding that Icon would intend to do the same works even if On Tower did not seek code rights, the FTT made a factual finding which the evidence could not support. The evidence was that this was all in response to On Tower’s claim for code rights.

The appeal hearing

[34]The hearing of the appeal took place over three full court days, between Tuesday 10 and Thursday 12 February 2026. Both parties produced detailed written skeleton arguments, with suggested pre-reading lists and chronologies. On Tower’s skeleton argument is dated 3 February 2026, and Icon’s skeleton argument is dated 4 February 2026. For Icon, Mr Clark KC addressed the Tribunal in support of Icon’s appeal for the whole of Day 1 and until about noon on Day 2. He was followed by Mr Lees KC, who presented his submissions in opposition to the appeal, and in support of On Tower’s cross-appeal on the fourth (Franses conditionality) ground, for the rest of Day 2 and until shortly after noon on Day 3. Miss Dodds then addressed the Tribunal on the remaining grounds of On Tower’s cross-appeal until just after 2.40 pm on Day 3. Mr Clark KC then replied for about 2 hours.[35]It is unnecessary for the purposes of this decision to reproduce the contents of these skeleton arguments in any detail, although I have borne their contents firmly in mind.[36]Since Mr Clark KC and Ms Schofield acknowledge that there is a certain element of commonality in Icon’s six grounds of appeal, their skeleton argument addresses them thematically by considering the following topics:(1) The concept of the ‘naked tower’: This originated in On Tower’s skeleton argument for the hearing before the FTT, which adopted it and wrongly used it to characterise Icon’s subjective intention. It has never been Icon’s aim to build a tower which would be, and would remain, ‘naked’, in the sense of a tower with no carriers. Icon intended to build a new tower, and it hoped this would attract MNOs. But the fact that it might take time for that hope to be realised and the risk that it might not be – does not mean that Icon’s intention was in any way conditional.(2) The ‘investment-led approach’: Icon criticises the FTT for wrongly equating a development motivated by a desire for a return on investment with a need for a guaranteed return. Having rightly noted that Icon’s underlying desire is for commercial success, it fell into error by wrongly concluding that Icon would not proceed if there were any degree of commercial risk. As Slade LJ pointed out in his concurring judgment in DAF Motoring Centre (Gosport) Limited v Hatfield and Wheeler Limited [1982] 2 EGLR 59 at 60-1, the statutory test does not require a landlord (or a site owner) “… to show, not only that they intended to carry out the scheme, but that they were ready and in all respects able to carry it out”.(3) The migration of MNOs: The FTT concluded – without Icon ever having suggested as much – that Icon’s intention was conditional on MNOs agreeing, in advance, to migrate to Icon’s proposed new mast. The FTT was wrong to conclude that Icon was wedded to the MNOs having committed to migrating from On Tower’s existing mast to Icon’s proposed new tower before Icon proceeded to build it out.(4) Mr Kay’s evidence: This is, and was, addressed in detail in Icon’s skeleton argument, and in Mr Clark KC’s oral submissions. Icon says that Mr Kay’s evidence makes it clear that Icon’s intention is to build a new tower, without any pre-condition that MNOs are to be secured first. Paragraph 17 of his first witness statement, in particular, clearly articulates an intention to make structures available “on a first come, first served basis”, which is the complete antithesis of a proposal contingent on MNOs being secured in advance. At paragraph 49, Mr Kay makes it clear that even if On Tower were to leave the site voluntarily "we would still put up a new tower on the On Tower site". There is no conditionality in that statement. It is not qualified by any statement to the effect, for example, that Icon would only build out the On Tower site once Icon had secured the MNOs to come over. Nowhere does Mr Kay say that Icon’s intended redevelopment of the site of On Tower’s existing mast was other than a speculative build out. Icon points out that it was put to Mr Kay directly in cross-examination (at Day 2, pages 192 and following) that should the MNOs indicate that they would not be coming over to Icon’s proposed new tower, Icon would not proceed to build its new mast. His answer was unequivocal, and was maintained, even when pressed in cross-examination by Mr Lees KC: that Icon would still go ahead and build its new mast. Mr Clark KC relies on this as unequivocal evidence, repeatedly affirmed, that Icon was going to build a ‘naked tower’, even if the MNOs were categorically to state that they would not be coming across. Against that background, from a witness whose credibility was unquestioned, and whose evidence was otherwise accepted, Icon submits that the FTT’s conclusion that Icon’s intention was infected by conditionality simply cannot stand. Icon emphasises that neither Mr Kay’s honesty, nor his credibility, were ever in issue. The FTT made no finding that Mr Kay was not telling the truth when he said that Icon intended to build out even if the MNOs were not coming over to the new mast (or might not be coming over, or could not be guaranteed to do so). It was never put to the witnesses called on behalf of Icon that they were not telling the truth when they were giving their evidence. Nor is there any finding by the FTT that any of Icon's witnesses were unimpressive or obstructive, whether deliberately or otherwise. Mr Clark KC accepts (by reference to observations of Marcus Smith J in Macey v Pizza Express Restaurants Ltd [2021] EWHC 2847 (Ch) at [33(1)]) that it is entirely possible to challenge the firmness and fixity of a landlord’s subjective intentions on the basis that he has simply mischaracterised his state of mind (by mistakenly, but genuinely, asserting that he has moved from the ‘zone of contemplation’ into the ‘valley of decision’); and to do so without questioning, or impeaching, the witness’s honesty. However, the FTT has not simply mischaracterised Mr Kay’s state of mind. It has identified that Icon had a different state of mind than that spoken to by Mr Kay. That required the FTT to reject his evidence. Since there was no challenge to Mr Kay’s honesty, it was not open to the FTT to find that he had misstated Icon’s intentions in his evidence to the FTT; and nor did the FTT expressly make any such finding.(5) The undertakings: The overall conclusions reached by the FTT were wholly at odds with the undertakings it accepted from Icon and its parent company (APW), and also with the supporting board minutes. Icon recognises that the decision of the Court of Appeal in Lightcliffe and District Cricket and Lawn Tennis Club v Walton [1978] 1 ELGR 35 makes it clear that an undertaking need not be accepted if there is material before the court which calls into doubt the bona fides of the undertaking. Icon says that in the present case, the undertakings were being given by responsible companies; and there was nothing to call into question the bona fides of the undertakings being given. The FTT clearly accepted that this was the position; and, as such, the evidential weight to be attached to them is of significance. There was nothing to undermine either the credibility, or the reliability, of those undertakings. They were clear, unequivocal, and unconditional. There was no suggestion that they were in any way inappropriate, or should be amended. Had Icon’s intention truly been conditional (as the FTT found), then Icon would have known that it might not (or, on the case advanced by On Tower, would not) be fulfilled. These undertakings are reliable evidence of Icon’s fixity of intention. Mr Clark KC submits that by ignoring the undertakings, the FTT failed to take a material factor into account; and that this represents a gap in the logic underlying the FTT’s reasoning which undermines the cogency of its conclusion. Its reasoning process has gone awry; and the Tribunal can interfere with the FTT’s decision. The several board minutes further reinforce the view that the proposed redevelopment is unconditional, in the sense that it is not dependent upon first securing the migration of the MNOs to Icon’s proposed new mast. On Tower criticises Icon’s failure to call any witness evidence from any of ‘the decision makers’ at Icon or APW. But Icon points out that in the context of a company, the decision makers are the board. A company can only act via its agents; and the board speaks for the company. A company board minute is the ordinary way by which one evidences a company’s intentions.(6) Other Evidence: The FTT’s overall conclusions are also said to be insupportable when other evidence is taken into account, not least the fact that Icon has already built out “numerous” (to quote from paragraph 47 of Icon’s skeleton argument) speculative towers before; and there is no reason to think that it has changed its approach. [I pause to note that, in fact, the evidence is that Icon has already built out six towers on a speculative basis (i.e. without any customers signed up in advance); and that only one of them currently has a tenant (Airwave, which provides communications coverage to the emergency services).] Icon says that there is no good reason why it should change its business model; and none has been suggested. Icon invites the Tribunal to note that it was never suggested, either by On Tower or by the FTT, that Icon’s proposal was not one which could not be said to be economically viable by reference to the figures produced by Icon. On Tower produced no alternative figures to suggest that Icon’s figures were unrealistic, or contrary to what one would expect in the marketplace for the development of a new telecommunications tower. For all these reasons, Icon submits that the evidence does not support the FTT’s decision that Icon’s proposed redevelopment was conditional upon Icon first securing MNOs to come over to its proposed new mast prior to any redevelopment commencing.[37]In support of its sixth ground of appeal, Icon submits that, on the evidence, and for reasons of commercial pragmatism, the FTT should have found that Icon had surmounted the low hurdle of demonstrating a real, and not merely a fanciful, chance of establishing that the MNOs would migrate to its new mast. The FTT correctly found that it should assess the element of objective intention on the assumption that Icon was entitled to possession of the site, and that On Tower’s tenancy at will had determined. But the FTT did not follow through on the logic of that finding, which is that since the MNOs were not in possession, they would need to move over to the new mast as soon as possible in order to fill the assumed gap in their transmissions network: a ‘not spot’. Had the FTT considered the full implications of what possession of the On Tower site by Icon entailed, and the evidence (and the absence of any evidence from On Tower and the MNOs) before it, the FTT ought to have concluded that, given their commercial pragmatism, and the MNOs’ desire to avoid a ‘dead cell’ at all costs, there was a reasonable possibility (which is all that Icon was required to show) that the MNOs would migrate to the proposed new tower. Like any other hard-nosed commercial enterprise, the MNOs would be guided by economics and commercial reality. Further, the FTT failed to take account of the fact that there was no evidence, of any description, from any of the MNOs (either directly from the MNOs or given on their behalf by On Tower) that under no circumstances would they contemplate migrating to Icon’s new tower once this was completed. If and insofar as On Tower wanted positively to establish that under no circumstances would any MNO migrate to the new tower, Icon contends that it ought to have produced evidence to that effect. It did not. The FTT was entitled to, but did not, draw any adverse inference from this omission. Icon submits that it was patently clear that if anyone should be calling evidence from the MNOs about what they would, or would not, be doing, it should have been On Tower, given its existing customer relationship with the MNOs, and given their nominations (whatever those nominations may have entailed). Accordingly, the FTT was perfectly entitled to draw an inference adverse to On Tower's position: that given the absence of any direct evidence from the MNOs, there remained a realistic possibility, given the circumstances to which the FTT had regard, and should have had regard, that the MNOs would migrate to Icon’s new mast. Thus, the FTT should have concluded that:(i) The MNOs would have needed to secure a replacement tower as quickly as possible.(ii) The last thing the MNOs would want was a ‘not spot’, with no network coverage.(iii) The best, and fastest, option for ensuring continuing network coverage would be for the MNOs to migrate to Icon’s new tower.(iv) This would be likely as a matter of commercial pragmatism, driven by the need to continue to provide a service to their mobile customers.(v) On Tower failed to demonstrate that anything else would happen, notwithstanding the burden that Icon says rested upon On Tower to provide positive evidence that the MNOs would not move over to the new tower.(vi) As a result, on the balance of probabilities, Icon ought to be found to have demonstrated that there was a reasonable prospect of the MNOs migrating over to its new tower.[38]Icon contends that its challenge is directed to the overall conclusion that the FTT reached concerning Icon’s intention, rather than to any primary findings of fact. To the extent that Icon challenges the FTT’s findings of fact, such findings are secondary, rather than primary findings (in the sense that they are inferences from primary findings). Icon submits that an appellate court may more readily interfere with findings of secondary fact. It relies upon R v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079; Todd v Adams [2002] EWCA Civ 509, [2002] CLC 1050; and Datec v Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325. Icon contends that the FTT’s failure to take material factors into account represents a gap in the logic underlying the FTT’s reasoning which undermines the cogency of its conclusions.[39]On Tower emphasises that Icon does not submit that the FTT fell into any material error of law on the issue of intention. It submits that the two findings which Icon challenges on this appeal are pure findings of fact, engaging precisely the concerns listed by the Court of Appeal in Walter Lilly. In particular, not having seen all the evidence that was before the FTT, and in circumstances where Icon seeks to remarshal the evidence from the trial, this Tribunal needs to guard against the risk of inadvertently permitting Icon to rely upon fresh evidence (through the medium of Mr Clark KC’s submissions). Moreover, the FTT had the benefit of evaluating the live witness evidence; this Tribunal does not. On Tower complains that Icon has been selective in the evidence it has presented, and emphasised, to this Tribunal, which must look at the evidence as a whole, reminding itself that it is at a disadvantage, when evaluating the witnesses, and their evidence, when compared to the FTT. This Tribunal must resist the temptation to engage in a re-trial, or to consider the evidence afresh through its own eyes and ears. It should be conscious of the dangers of ‘island-hopping’, and the selective identification of particular pieces of the evidence. It is not permissible for this Tribunal to revisit all the evidence afresh. On Tower emphasises that Icon is seeking to overturn two discrete findings of fact made by a specialist tribunal, comprising a judicial and a surveyor member, both of whom participated in the questioning of Mr Kay at the end of his oral evidence.[40]In response to Icon’s challenge to the FTT’s findings on subjective intention, On Tower submits that all of Icon’s witness statements and disclosure emphasise that its proposals to build at Queen’s Oak Farm were investment-led; in particular, the financial modelling which set out the income anticipated from each MNO, and the consequent internal rate of return. There was absolutely no contemporaneous documentation whatsoever to support the suggestion, whether generally or in relation to this particular site, that Icon was considering a speculative development in the form of a ‘naked tower’. Mr Kay had accepted that the original proposal to build on Icon’s own site 100m to the east had been conditional on the MNOs migrating over: as the FTT correctly recorded (at [77]), in answer to a question from Mr Lees KC, Mr Kay confirmed that the original proposal to build a mast on Icon’s own land to the east of On Tower’s site “was not a speculative build”. Speculative builds were only a small part of Icon’s business model: in his first witness statement (at [20]), Mr Kay had said that Icon had approximately 50 sites across the UK. Mr Lees KC accuses Mr Clark KC of seeking to give evidence, and of a selective presentation of the evidence that had been given to the FTT. The suggestion that Icon would build upon On Tower’s site regardless of the MNOs moving over arose for the first time during Mr Kay’s cross-examination, and this was wholly unsupported by any modelling or other documents. Even the documents that were produced by Icon during (and in response to) the hearing before the FTT indicate that the boards of both Icon and APW remained resolutely focused on the project’s internal rate of return. The board minutes and undertaking approving the increased incentive sum only make any sense on the footing that the MNOs are to be coming across to Icon’s proposed new tower. The site development analysis within the tower return model supporting the email sent on 2 October 2025 which purports formally to confirm the Radius Investment Committee’s approval for the site contains the very same assumption as before of three carriers who will be coming over in each of months one to three. Mr Lees KC submits that the board minutes do not compel the conclusion that there was an unconditional intention to build speculatively. The FTT expressly acknowledged (at [100] of its decision) that “Icon has built towers speculatively”. The FTT considered, evaluated, but rejected Mr Kay’s evidence (recorded at [93]) that “Icon would proceed with its redevelopment even if none of the 3 carriers came across”, just as it rejected (at [96]) the first of the reasons Mr Kay had given for not having spoken to any of the MNOs. That did not involve any finding that Mr Kay, who was not himself a decision-maker, was lying in his evidence. The FTT simply declined to find that Mr Kay’s evidence amounted to the requisite firm and settled intention to redevelop on Icon’s part. The FTT undertook an evaluative exercise, with the benefit of having seen and heard Mr Kay, and observed his demeanour. It identified inconsistencies and changes in the evidence, the lack of supporting documentary evidence, and the non-communication of supporting figures to the board - acknowledged by Mr Kay in cross-examination at Day 2, pages 161 and 179 - and (at [122]) the FTT arrived at a decision that it was entitled to reach:
“that Icon’s redevelopment is wedded to MNOs migrating from on Tower”
. Certainly, it cannot be said that this conclusion was ‘plainly wrong’, or was one which, on the whole of the evidence, the FTT could not properly have reached. It is not sufficient to justify this Tribunal in allowing this appeal that it might have reached a different conclusion. This Tribunal is not the relevant decision-maker.[41]As regards Icon’s sixth ground of appeal (objective intention), On Tower emphasises that the burden of establishing a reasonable prospect of any hurdles being overcome (or outstanding conditions satisfied) is squarely on the site owner. In Steppes Hill Farm, the Tribunal rejected Icon’s submission that, despite a lack of evidence, it could make a finding that there was a reasonable prospect of other MNOs coming onto its own tower (even if the operator’s existing masts were removed) by drawing an inference in Icon’s favour. Rejecting Icon’s arguments that the Tribunal was entitled to infer, from the available evidence, that other MNOs would wish to stay in the location, and that the operator could have called evidence from the other MNOs, but had not done so, the Chamber President (Edwin Johnson J) held (at [315-6]) that: The burden of demonstrating that there is a reasonable prospect that the other MNOs would migrate to the New Tower, in the event of the removal of the Masts, lies upon the Respondents. This is simply a function of the burden which is upon the Respondents to prove that Icon has the required intention for the purposes of Paragraph (c). We have heard no evidence from any of the other MNOs. We do not know their particular circumstances, or requirements, or commercial options if the Masts were to become unavailable. We do not consider that we are able, on the available evidence, to make a finding that there would be a reasonable prospect of the other MNOs moving to the New Tower, if the Masts were removed. On Tower submits that even by the time of the hearing before the FTT, and despite the clear direction from the Tribunal in Steppes Hill Farm as to what sort of evidence is required to establish a reasonable prospect, Icon had still not spoken to any of the MNOs about Queen’s Oak Farm. It emerged at the hearing (without any mention having been made in the witness statements) that Icon had previously built six towers elsewhere (including some to the specific requirements of MNOs); yet no MNO had so far come on to any of its towers. Icon recognised that its role in litigation (including Steppes Hill Farm) could well have damaged its relationship with the MNOs. Conversely, all of the customers currently on Queen’s Oak Farm had provided nominations to On Tower in respect of an alternative site to the south, known as White Rose Farm, which On Tower was progressing. The FTT’s conclusion was not merely that Icon had failed to establish a reasonable prospect of the MNOs migrating (as this Tribunal had found in Steppes Hill Farm). The FTT went further and found (at [138]), on the balance of probabilities, that the “most likely outcome” was that the MNOs would not migrate to Icon’s proposed new tower. To succeed on its sixth ground of appeal, Icon would need to overturn both of those findings of fact. Mr Lees KC submits that Icon cannot point to any gap in the logic of the FTT’s decision, any failure to take account of some material factor which undermines the cogency of its conclusion, or that the FTT reached a conclusion which, on the facts it found, the FTT could not properly have reached. The FTT simply arrived at a different conclusion than that which Icon urged upon it. The FTT expressly proceeded (at [127]) “… to assess the objective element on the assumption that Icon is entitled to possession of the site and that On Tower’s tenancy at will has determined”. Two of the factors that the FTT expressly bore in mind (in the first two bullet points at [136]) were that “commercial pragmatism will prevail”, and that “the MNOs will want to avoid detriment to their customers and will not ‘set their faces’ against migration”. The FTT held that these did not outweigh the countervailing factors which it had identified at [137]. Further, the logic of approaching the matter on the basis that Icon is in possession of the site is that On Tower’s electronic communications apparatus has been removed from the site, and that the existing MNOs are no longer present on the site. On Tower having raised this hurdle, the burden rested squarely upon Icon to overcome it, if necessary by calling evidence from the MNOs. After all, there is no property in a witness.[42]The Tribunal has already summarised the submissions advanced by On Tower in support of its cross-appeal. Icon resists all four grounds of challenge. It submits as follows:(1) Redevelopment: On Tower’s contention that ‘redevelopment’ connotes a change from what was on the land before, and that mere replacement with new electronics communication apparatus does not qualify, is simply wrong. Work of the type which Icon intends to carry out does constitute redevelopment. Icon’s proposed works obviously constitute ‘redevelopment’ within the natural meaning of that word. That conclusion is entirely consistent with the policy of the Code. In any event, the point was authoritatively determined in Icon’s favour by the Chamber President (Edwin Johnson J) in Steppes Hill Farm; and there is no reason why this Tribunal ought not to follow that decision.(2) MNO migration: On Tower asserts that the FTT was wrong to assume that Icon was in possession at the hearing date when it considered whether or not MNOs would be likely to migrate to Icon’s new tower. On Tower suggests that the better assumption is that Icon should treated as being in possession only following the determination of proceedings under Part 6 of the Code. Icon says that On Tower is wrong about that; the FTT’s analysis was correct. Icon should be assumed to be in possession at the date of the hearing for the purpose of considering what would be likely to happen at the site as regards MNO migration (or indeed for any other purpose).(3) Time for negotiations with the MNOs: On Tower complains that the FTT ought to have taken into account the time it would take for Icon to negotiate with the MNOs for them to come across to its proposed new mast; and that had it done so, the FTT would have concluded that Icon could not start the works within a reasonable time. Icon submits that this complaint is simply misdirected. The only issue was Icon’s intention. The FTT found (as Icon asserts wrongly) that Icon’s subjective intention was conditional on the MNOs migrating. If (as Icon asserts on appeal) the correct conclusion is that Icon intends to build out regardless of whether or not the MNOs agree to migrate, then the timescale for any negotiations for that migration is clearly irrelevant. If, however, the FTT was correct in its finding that Icon’s intention was conditional on the MNOs migrating, then Icon submits that all that Icon needed to show in order to establish the relevant intention was that there was a reasonable prospect of the MNOs migrating. If there were such a reasonable prospect, then the build-out would occur; and it would do so within a reasonable time (there being no other impediment). Either way, therefore, the time for negotiating with the MNOs does not come into it. Whether the FTT was right or wrong about Icon’s intention, On Tower is wrong to suggest that the period during which Icon might negotiate with the MNOs is of any relevance. This ground of cross-appeal must therefore fail.(4) Franses conditionality: The fact is that Icon ‘pivoted’ back to its original wish to redevelop by constructing a new mast upon On Tower’s site in response to legal advice received from its lawyers that the decision in Steppes Hill Farm had implications for this site by enabling Icon to put forward a case that ‘redevelopment’ extended to building ‘over the top’ of an existing mast, to Icon’s obvious commercial advantage. This does not lead to the conclusion that Icon thereby had an impermissible Franses intention. There is no suggestion, and no evidence to the effect, that if On Tower had vacated its site, the plan to redevelop that site would simply collapse, and Icon would revert to some other location. On the contrary, the existing On Tower Site would remain just as suitable for the MNOs as it ever was, and just as desirable to Icon. In addition to the authorities considered by the FTT, in the course of his oral submissions Mr Clark KC took me to the decision of HHJ Hellman in Spirit Pub Company (Managed) Ltd v Pridewell Properties (London) Ltd, decided in the Mayor’s & City of London Court on 14 March 2025 at [70-71]: 70. In Franses, the Supreme Court held that a landlord will not have the requisite intent if they would not intend to do the same works if the tenant left voluntarily. That is a narrow point. I am satisfied that the Defendant intends to pursue the Development irrespective of whether the Claimant stays or goes. Therefore the Defendant’s intention is not ‘conditional’ in the Franses sense. I accept that the Defendant’s decision was accelerated by the Claimant’s request for a new business tenancy and subsequent claim, but that is nothing to the point. Insofar as the Defendant has engaged in tactical manoeuvres, as to which I need make no finding, that would not be relevant to the Franses point either. 71. I therefore reject the Claimant’s second submission as to why ground (f) is not satisfied. The Defendant does have a firm and settled intention to carry out the Development and its intention is not ‘conditional’ in the Franses sense.[43]In response to these submissions, On Tower made the following further points at the hearing of the appeal before this Tribunal:(1) Redevelopment: Miss Dodds submits that the FTT erred in law in holding that the erection of a mast constitutes the ‘redevelopment’ of land within paragraph 21(5). That is because the definition of ‘land’ (in paragraph 108(1) excludes ‘electronic communications apparatus’; and this is widely defined as including “(a) apparatus designed or adapted for use in connection with the provision of an electronic communications network”, and “(d) other structures or things designed or adapted for use in connection with the provision of an electronic communications network”. It therefore includes both the mast itself and its concrete base. The redevelopment of a mast is not the redevelopment of ‘land’, falling with paragraph 21(5), because the subject-matter of the redevelopment is not the ‘land’ itself. Miss Dodds says that it is no answer to this point for Icon to assert that it is developing the site as freeholder because when deciding whether paragraph 21(5) is engaged, one must look at the scope of the proposed works through the prism of the Code. In any event, the wording of paragraph 21(5) differs from that of s. 30(1)(f) of the 1954 Act. As the Chamber President (Fancourt J) observed in EE Ltd v Stephenson [2021] UKUT 167 (LC) (Pendown Farm) at [53]: … the provisions of the Code are not in any respect exactly the same as those of Part II of the 1954 Act. One must be careful not to read in too much, based on superficial similarity of structure or language. The purpose underlying the 1954 Act was very different from that of the Code: to protect tenants of business premises from excessive costs, business interruption and loss of goodwill, by providing security of tenure while protecting the legitimate interests of landlords in recovering possession and receiving payment of a market rent. The purpose underlying the Code is to ensure that operators can use and exploit sites more flexibly, quickly and cheaply than had previously been the case, at lower than open market rents, in furtherance of the public interest of providing access to a choice of high quality electronic communications networks, while providing a degree of protection to site owners’ legitimate interests. In both cases, there is an objective of providing security for the tenant/operator and continuity of operation. ‘Redevelopment’ connotes a change to the land; and not the like-for-like replacement of what is already there. Here, Icon is proposing to replace something that is already on the land, which will remain physically the same as it was before the replacement. The concept of ‘redevelopment’ takes its meaning from its statutory context. It was never part of the purpose of the Code to regulate relationships between telecommunications operators. As the Tribunal observed in Cornerstone Telecommunications Infrastructure Ltd v Keast [2019] UKUT 116 (LC) (Penrose Farm) at [30]: The Code regulates the legal relationship between Code operators and occupiers of land. It does not create or regulate legal relationships between Code operators. They are a matter of private contract, subject to regulation by OFCOM. In particular it is not the policy of the law to give Code operators access to each other’s equipment on favourable terms (in particular as to consideration ...). So the Code prevents what Mr Watkin tells me are called ‘blue on blue’ applications for Code rights by providing that Code rights can be obtained over ‘land’, and stating in paragraph 108 that ‘land’ does not include electronic communications apparatus’. Miss Dodds identified no less than six separate policy considerations which are said to support On Tower’s approach to the interpretation of paragraph 21(5). She recognises that there is support for the contrary position in previous decisions of the Tribunal; but she points out that these are not binding on this Tribunal. She submits that in Chichester/Meyrick and Vache Farm, the Tribunal assumed the point without the benefit of full argument. In Steppes Hill Farm the Tribunal fell into error when (at [260]) it regarded the ‘land’ as changed, and could be described as redeveloped, in the situation where one mast is simply taken down and replaced by a new mast. Miss Dodds accepts that in that paragraph, the Tribunal did expressly consider the definition of ‘land’ in paragraph 108(1). But it did not consider the several policy considerations which Miss Dodds has urged upon this Tribunal. Further, Steppes Hill Farm was a termination case, involving paragraph 31(4)(c), rather than opposition to an application for an order conferring code rights under paragraph 21(5).(2) MNO migration: Miss Dodds submits that the issue the House of Lords had to decide in Westminster was the circumstances, necessarily hypothetical, in which the respondent landlord's prospects of success on a planning appeal to the Secretary of State must be considered. More particularly, the House had to decide whether the landlord’s prospects of success on such an appeal should fall to be considered on the assumption that, when the Secretary of State came to decide the appeal, the landlord was entitled to possession of the premises and the tenant’s occupation had ceased. It seemed to Lord Bridge, speaking for the House of Lords, that an affirmative answer to that question was inescapable. A landlord opposing the grant of a new tenancy under s. 30(1)(f) or (g) of the 1954 Act is seeking to establish what it intends to do “on the termination of the current tenancy”. If the only obstacle to the landlord implementing an admittedly genuine intention is a suggested difficulty in obtaining a necessary planning permission, the plain language of the 1954 Act required that his prospect of success in overcoming that difficulty should be assessed on the footing that he was entitled to possession: see 680 E-G. Miss Dodds submits that nothing in that reasoning (or in the later decision of the Court of Appeal in the Humber Oil Terminals case which followed it) supports the proposition that one must accelerate the date of the site owner’s entry into possession to the date of the hearing for the purposes of determining whether it has made out the ground of opposition to a claim to an agreement conferring code rights on an operator under paragraph 21(5) of the Code. As the Tribunal expressly recognised in Chichester/Meyrick (at [38]), where they are relevant, principles applicable to the 1954 Act should be adopted; but there is a need to be aware of the different context in Code cases:
“Not all principles will be relevant and the factual background will have an effect on this; issues of timing, for example, need to be carefully considered.”
The FTT fell into error when it determined (at 127]) that it was “required to assess the objective element on the assumption that Icon is entitled to possession of the site and that On Tower’s tenancy at will has determined”. A site owner may only require the removal of electronic communications apparatus on, under or over land after it has served a notice requiring the operator to remove the apparatus; and this must specify a reasonable period to complete the works, and otherwise comply with paragraph 40 (and following) of the Code. Icon’s vacant possession assumption has no textual support in the Code, and is contrary to the presumption of reality. Parliament must be taken to have known that the test in paragraph 21(5) would fall to be applied whilst an existing operator who is seeking the conferral of code rights is already in possession of the relevant site. Had Parliament intended to depart from the presumption of reality, it would have used clear words, as it did in paragraph 24(3) when it set out the assumptions on which market value falls to be assessed, including the ‘no network’ assumption. Icon is inviting the Tribunal to assume something that is counter-factual and contrary to reality. The FTT should have assessed the objective element on the basis of the reality that On Tower was in possession of the mast, and would remain so for a reasonable time, and at least for the further 28 days provided for in paragraph 40(5). (3) Time for negotiations with the MNOs: If Icon succeeds in satisfying this Tribunal that its intention was not conditional upon MNOs migrating over to its new mast, it must also satisfy the Tribunal that there is a real prospect of this happening, and of Icon starting redevelopment works within a reasonable time. At [277-8] of Steppes Hill Farm the Tribunal held that that there is a requirement that the relevant work must be commenced within a reasonable time of the code agreement coming to an end. What that reasonable time is in any particular case is a fact sensitive question; but the Tribunal did not consider that it was open to a site provider to allege an intention to carry out the relevant work at any point in the future, however distant from the termination of the code agreement. Miss Dodds complains that the FTT simply did not consider this issue. It made no finding in relation to the time when Icon was likely to commence its proposed works. Rather it found (at [148]) that “construction of the new tower can be completed within a reasonable time”. The FTT fell into error by asking itself the wrong question. Miss Dodds points to authority under s. 30(1)(f) of the 1954 Act to the effect that a ‘reasonable time’ is generally only a few months, and certainly not as long as 12 months, from the date of the hearing, at least without good reason. Having found that Icon would not commence its works until it had brought the MNOs over to its proposed new mast, the FTT made no findings as to how long this would take. Icon has therefore failed to establish that it has a real prospect of commencing its work within a reasonable time. (4) Franses conditionality: Mr Lees KC does not contest the way the FTT stated the ‘acid test’ at [140] or the FTT’s summary of the way in which Icon’s case had ‘pivoted’ in response to the ongoing litigation at [141]. Where Mr Lees KC says the FTT fell into error is at [143], where it focuses upon Icon’s motive. This is not the correct test. Mr Lees KC cites from the leading judgment of Lord Sumption JSC in Franses, where (at [17]) he states: This appeal does not, as it seems to me, turn on the landlord’s motive or purpose, nor on the objective reasonableness of its proposals. It turns on the nature or quality of the intention that ground (f) requires. Mr Lees KC emphasises that this was a ‘lawyer-led’ solution. The works were a response to On Tower’s assertion of a claim to code rights. He relies on the statement at [39] of the decision in Chichester/Meyrick: … the policy of the Code is to enable Code operators to acquire Code rights and to do so at a price calculated on the basis of assumptions that are favourable to them. A redevelopment conceived purely to prevent the acquisition of Code rights, which the relevant person would not pursue if Code rights were not sought, will not satisfy the test in para.21(5) for the reasons given by the Supreme Court in S Franses Ltd. Such an intention is not the unconditional intention that Parliament sought to protect. The entire development proposal to go over the top of the existing mast was conceived to prevent the acquisition of code rights. The fact that this decision may been supported by a legitimate business aim is not a sufficient answer to On Tower’s objection based on Franses. Mr Lees KC accepts, by reference to the Spirit Pub Company decision, that it is permissible to accelerate a decision to redevelop a site if such a proposal is already in train. But here there had been no previous plans to redevelop this particular site; it is not a case of acceleration but rather of conception or initiation, led entirely by the lawyers, who initiated the proposal to redevelop this site in response to, and in order to defeat, the acquisition of code rights. Had the FTT asked itself the right question: Would Icon have intended this development had On Tower not asserted a claim to code rights, the answer is clearly: No. The FTT did not apply the correct legal test; and it asked itself the wrong question by focusing solely upon the question of Icon’s motive. Icon would never have chosen to redevelop this site had On Tower left it voluntarily. The prevention of the acquisition of code rights was not merely a collateral effect of Icon’s proposed redevelopment (as the FTT stated at [143]): it was the very genesis, and object, of the redevelopment proposal.[44]During the course of the appeal hearing, the Tribunal was taken to many passages in the transcripts of the hearing before the FTT. The Tribunal reminds itself that these are only a selection; and that, in any event, the written transcript cannot convey the full impact of the evidence. The hearing concluded at about 4.40 pm on Day 3, with the Tribunal reserving its decision. When preparing this decision, the Tribunal has re-read (more than once) the FTT’s decision, the skeleton arguments, and the Tribunal’s notes of the three days of the appeal hearing. In the course of doing so, the Tribunal has also referred back to the documentary references in the submissions of counsel, both written and oral.

Appeals against findings of fact

[45]On Tower emphasises that the threshold for appealing a finding of fact is very high, and for good reason. The Tribunal was referred to a number of case law authorities.[46]Delivering the judgment of the Court of Appeal in Subesh v Secretary Of State for the Home Department [2004] EWCA Civ 56, [2004] Imm AR 112, Laws LJ (at [44]) explained why the appeal process is not merely a re-run second time around of the hearing at first instance: It is because of the law's acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet on virgin territory. The first instance decision is taken to be correct until the contrary is shown … An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.[47]Unjustified intervention by an appellate court is itself a ground for appeal. In Henderson v Foxworth Investments Limited [2014] UKSC 41, [2014] 1 WLR 2600, the Supreme Court (in a Scottish case) reinstated the decision of the Lord Ordinary at first instance which had been wrongly overturned on appeal by an Extra Division of the Inner House of the Court of Session. Given that the Lord Ordinary had not misdirected himself or gone ‘plainly wrong’, the appeal court should not have intervened. At [62], Lord Reed JSC clarified the meaning of ‘plainly wrong’: Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone ‘plainly wrong’, and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.[48]Delivering the leading judgment of the Court of Appeal (with which Asplin and Lewison LJJ agreed) in Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136, [2021] WLR 2753, Carr LJ said this (at [83-7]): 83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include:(i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed;(ii) The trial is not a dress rehearsal. It is the first and last night of the show;(iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case;(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping;(v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence);(vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done … 85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: (i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; (ii) Where the finding is infected by some identifiable error, such as a material error of law; (iii) Where the finding lies outside the bounds within which reasonable disagreement is possible. 86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. 87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.[49]Finally, reference should be made to the recent statement of principle handed down by the Chamber President (Edwin Johnson J) in AP Wireless II (UK) Ltd v EE Ltd [2026] UKUT 45 (LC) (Equipoint) at [75], following a full review of the authorities (starting at [66]): Drawing together the above authorities it seems to me that the position is as follows, in terms of my ability to interfere with the findings made by the Judge in relation to Preliminary Issue 1 which are challenged in the Appeal:(1) I am not concerned with a challenge to findings of primary fact made by the Judge.(2) I am concerned with a challenge to findings made by the Judge on the basis of his evaluation of the primary facts.(3) In considering that challenge it is not my role to carry out the evaluation exercise over again.(4) The greater freedom to interfere with secondary findings of fact, as opposed to primary findings of fact, referred to by Moore-Bick LJ in Peekay, has to be read subject to the limitations explained in Todd, Clin and Datec.(5) My role is to decide whether the Judge’s evaluation of the evidence, in his relevant findings, was wrong by reason of some identifiable flaw in his treatment of the matter to be decided. Examples of such identifiable flaws, which are given in the case law which I have cited, are (i) a misdirection in law, (ii) a gap in the logic, (iii) a lack of consistency, (iv) a failure to take account of some material factor which undermines the cogency of the conclusion, (v) taking into account a factor which should have been left out of account, (vi) reaching a conclusion which, on the facts, the judge could not properly have reached.[50]It is clear that the Chamber President was not seeking to provide an exhaustive list of the correctable errors that might infect a trial court or tribunal’s evaluation of the evidence relevant to the matter falling for decision. Any list of such errors would clearly extend to other matters, such as any misapplication of the relevant law to the particular facts found by the fact-finding body, and any failure to follow through on the logical implications of its other findings of fact. It is also important to bear in mind that there is no binary, bright-line distinction between errors of law and of fact: an error may be a mixed error of law and of fact.[51]In response to a question from the Tribunal, Mr Clark KC submitted that three of the identifiable flaws cited by Edwin Johnson J are present in the FTT’s decision on this reference: (ii) a gap in the logic; (iv) a failure to take account of some material factor which undermines the cogency of the conclusion; and (vi) reaching a conclusion which, on the facts, the judge could not properly have reached.

Conclusions

[52]In light of that necessarily lengthy preamble, the Tribunal can state its conclusions quite shortly. (1). Subjective intention[53]The Tribunal has carefully considered both Icon’s several, but inter-connected, challenges to the FTT’s findings of fact on subjective intention, and On Tower’s response to Icon’s assault. The Tribunal is satisfied that, despite the forceful submissions of Mr Clark KC, the FTT correctly understood, and analysed, Mr Kay’s evidence. The Tribunal prefers, and accepts, the equally forceful, and rival, submissions of Mr Lees KC.[54]In the Tribunal’s judgment, there is no substance in Mr Clark KC’s contentions that the FTT failed to consider, or to understand, Mr Kay’s evidence. The Tribunal considers that this evidence was treated accurately and fairly. It is clear from the narrative timeline followed by the FTT in its decision that when it recorded (at [77]) that “Mr Kay confirmed that Queens Oak Farm was not a speculative build”, it had firmly in mind that this was a reference to Icon’s earlier proposal to build a mast on a new site 100m to the east of On Tower’s existing mast; and that Icon had later “changed its plans” (as noted at [79]). At [93] the FTT acknowledged Mr Kay’s evidence that Icon “would proceed with its redevelopment even if none of the 3 carriers come across”. At [95] the FTT referred to Mr Kay’s belief “that all MNOs would come across based on lower rents and also lack of an alternative site”. At [98] the FTT notes that in answer to the question: What would happen if On Tower were to vacate the site voluntarily? “Mr Kay said that Icon would still build their tower”. The FTT clearly accepted this part of Mr Kay’s evidence when it was deciding the issue of Franses conditionality at [143]. But it equally clearly rejected his evidence on subjective intention in the section of its decision in which the FTT sets out its conclusions on that issue (at [121-4]).[55]Mr Clark KC criticises the FTT’s statements (at [122]) that: There is no suggestion from any of the Icon, APW or Radius decision makers that Icon’s redevelopment intention involves the building of ‘a naked’ tower i.e. a tower with no carriers. There is no support from any of the Icon, APW or Radius decision makers that Icon’s plans for the Site are as a ‘start up’ or ‘seed’ capital. Mr Clark KC rightly makes the point that the boards of Icon and APW are their ‘decision-makers’; and that their decisions are evidenced in their board minutes. The FTT may well have been making the point that no live ‘decision-maker’ had given evidence before the FTT, or was available to be cross-examined by Mr Lees KC. Certainly, the FTT’s decision refers to the several board minutes (at [81], [86], [87], and [91]). The FTT also cites the undertakings given by Icon and by APW, approved by resolutions of their respective boards, at [114]. The FTT’s decision cites the helpful summary on the position in respect of the use of undertakings in 1954 Act proceedings to be found in Reynolds and Clark: Renewal of Business Tenancies (6th edn) at [7-208] and [7-275]. The FTT also cites the passage from the judgment of Lord Briggs JSC in Franses (at [29]) about the common practice concerning the use of undertakings, as follows: The courts have until now restricted the forensic examination of the landlord’s purpose or motive to a test of the genuineness of that intention. By ‘genuineness’ I have no doubt that the court meant honesty. In practice, that examination has, for very many years, largely been overtaken by the common use of the undertaking to the court to carry out the works if a new tenancy is refused, as a reliable litmus test for genuine intention. But neither the undertaking to the court, nor the examination of the genuineness of the landlord’s intention, will reveal whether the landlord’s intention is of the disqualifying conditional kind, as this case demonstrates. At [120] the FTT concludes by accepting … both the Icon and APW undertakings as evidence, although not conclusive evidence, of the genuineness of Icon’s intention to commence and complete its proposed redevelopment. Clearly, the FTT did not ignore these undertakings.[56]This Tribunal is concerned that nowhere in its decision does the FTT explain, in express terms, its reasons for rejecting these undertakings. The decision of the Court of Appeal in Lightcliffe and District Cricket and Lawn Tennis Club v Walton [1978] 1 ELGR 35 stands as authority for the proposition that an undertaking, no matter who gives it, and in whatever circumstances, creates no legal presumption concerning, and is not decisive on the matter of, the intention of the person proffering it. Rather, the particular undertaking must be examined by the court or tribunal in the light of all the circumstances of the case, in order to determine whether it is honest, present and real, and possesses the necessary qualities of fixity and genuineness. For practical purposes, an undertaking which is given by a substantial company of good reputation may be found to be more dependable than an undertaking given by an individual, who may, for personal reasons, find it necessary, or expedient, to change his mind: see, in particular, the leading judgment of Shaw LJ at p. 36. Here, the FTT has identified no specific factors which might (still less did) weigh with it against either the reality, or the good faith, of the intention reflected in, and manifested by, the undertakings proffered at the hearing by Icon and by APW.[57]This Tribunal considers that where an undertaking is proffered by a substantial company of good reputation and adequate financial standing, the requirements of sufficiency, and transparency, of judicial reasoning, and also good judicial practice, dictate that the court or tribunal should explain, if such is the case, precisely why such an undertaking is not being treated as “a reliable litmus test for genuine intention”. Here, Icon’s undertaking, proffered both to the FTT and to On Tower, was “that it will commence the intended redevelopment of the On Tower UK site at Queens Oak Farm and complete the same as soon as reasonably practicable upon vacant possession being obtained”. The Tribunal accepts Mr Clark KC’s submission that this was clear and unequivocal evidence, from Icon’s decision-maker, of the fixity of its intention. This Tribunal would not have rejected this evidence without explaining its reasons for doing so. However, it is clear both that the FTT was fully alive to this evidence, and that it did reject it. Whilst the FTT should have clearly articulated, and spelled out, its reasons for doing so, this Tribunal cannot say that in omitting to do so, it fell into the type of error that would entitle this Tribunal to reverse the FTT’s finding on the issue of subjective intention. That is because the undertaking was just part of the evidence in the case; and the FTT was entitled, and required, to have regard to the totality of the evidence, and was not bound to accept the undertaking.[58]One of the arguments advanced by the appellant in Equipoint (at [130-2]) was that the judge had gone wrong in his evaluation of the evidence in relation to the question of statutory protection under the 1954 Act. Rejecting this argument, the Chamber President (Edwin Johnson J) said this (at [131]): I do not regard it as necessary to go into the individual arguments of the Appellant in this respect. To do so would involve my putting myself into the place of the Judge, and carrying out my own evaluation of the evidence, without the benefit of having read all the evidence which was before the Judge, and all the argument on that evidence which was put to the Judge. My role is to review the Judge’s evaluation of the evidence. The essential problem confronting the Appellant in this respect is that it is clear from the Decision that the Judge considered and had in mind the various matters which, so the Appellant contends, should have caused the Judge to conclude that the existence of statutory protection was no reason not to infer a periodic tenancy. The Judge’s evaluation of the relevant matters was not the same as that of the Appellant. That is not a good reason for interfering with the Judge’s evaluation of the evidence. In the judgment of this Tribunal, similar observations apply on the instant appeal. As Mr Lees KC correctly submits, the FTT’s evaluation of the relevant evidence was not the same as that of the appellant; but that is no good reason for interfering with the FTT’s evaluation of that evidence.[59]Ultimately, and despite Mr Clark KC’s forceful submissions to the contrary, I am not persuaded that the FTT’s decision is one that no reasonable specialist tribunal could properly have reached. I am not satisfied that the FTT’s process of reasoning, and the application of the relevant law on subjective intention (which it correctly analysed and stated), required it to adopt a different view of the totality of the evidence in the case. In the Tribunal’s judgment, Icon cannot point to any gap in the logic underlying the reasoning of the FTT’s decision, nor to any failure to take account of some material factor which undermines the cogency of its ultimate conclusion. Nor can Icon establish that the FTT reached a conclusion which, on the facts it found, the FTT could not properly have reached. The FTT simply arrived at a different conclusion than that which Icon urged upon it. It cannot properly be said that that conclusion was ‘plainly wrong’, or was one which, on the whole of the evidence, the FTT could not properly have reached. It is not sufficient to justify this Tribunal in allowing Icon’s appeal that it might have reached a different conclusion on all the evidence that was before the FTT. It is not this Tribunal which is the relevant decision-maker. (2). Objective intention[60]For similar reasons, the Tribunal rejects Icon’s challenge to the FTT’s findings that:(1) Icon had failed to demonstrate that there was a reasonable prospect that MNOs would migrate to its new tower;(2) on the balance of probabilities, the most likely outcome was that the MNOs would not migrate to Icon’s new tower; and(3) Icon had no reasonable prospect of being able to carry out its redevelopment. On this issue, the Tribunal has no hesitation in preferring the submissions of Mr Lees KC to those advanced by Mr Clark KC. Icon can point to no gap in the logic of the reasoning underlying the FTT’s decision, nor any failure to take account of some material factor which undermines the cogency of its conclusions. The FTT identified, and weighed, various competing factors (at [136-7]); and it reached a conclusion which, on the facts it found, the FTT was entitled to arrive at. In reality, Icon’s real complaint is simply that the FTT arrived at a different conclusion from that which Icon had urged upon it. The FTT expressly proceeded (at [127]) “… to assess the objective element on the assumption that Icon is entitled to possession of the site and that On Tower’s tenancy at will has determined”. That was a basis more favourable to Icon than that which On Tower now urges upon this Tribunal by way of its cross-appeal. As Mr Lees KC points out, two of the factors that the FTT expressly bore in mind (in the first two bullet points at [136]) were that “commercial pragmatism will prevail”, and that “the MNOs will want to avoid detriment to their customers and will not ‘set their faces’ against migration”. The FTT held, however, that these considerations did not outweigh the several countervailing factors which it had identified (at [137]). It cannot sensibly be found that this aspect of the FTT’s decision is one that no reasonable tribunal could properly have reached. There was an abundance of evidence upon which the FTT could safely reach the decision it did. Since On Tower had raised this particular challenge, the burden rested squarely upon Icon to prove that it entertained the necessary objective intention, if necessary by calling evidence from the MNOs. On Tower did not have to prove anything. It was for Icon to discharge the burden that lay upon it. The Tribunal rejects Mr Clark KC’s submission that there was any obligation falling upon On Tower to call any of the MNOs. Had this ground of appeal stood alone, the Tribunal doubts whether permission to appeal would have been granted to pursue it.[61]For these reasons, the Tribunal dismisses Icon’s appeal. Strictly, therefore the cross-appeal does not fall to be determined, and no order needs to be made upon it. However, for completeness, the Tribunal will address the several issues raised by the cross-appeal, albeit only briefly. (3). Redevelopment[62]The FTT found (at [157]) that the “taking down of one mast and the construction of another mast is redevelopment under paragraph 21(5) of the Code”. Unlike the works proposed in both Chichester/Meyrick and Steppes Hill Farm, the works proposed to be carried out by Icon in the present case do not include the removal of On Tower’s existing mast since On Tower would be required to remove this in order to deliver up vacant possession of the site to Icon at the determination of its tenancy at will. The Tribunal therefore proceeds on the footing that Icon’s proposed redevelopment only involves the construction of a new mast and the installation of ancillary electronic communications apparatus. However, this does not make any difference to the effect of the submissions on this aspect of the cross-appeal. On Tower submits that the FTT erred in law when it held that the replacement of existing electronic communications apparatus by the erection of a new mast constitutes the ‘redevelopmentof land’ within paragraph 21(5) of the Code. It says that ‘redevelopment’ connotes a change to the land; and not the like-for-like replacement of what is already there. Here, Icon is proposing to replace something that is already on the land, which will remain physically the same as it was before that replacement. In any event, the redevelopment of a mast is not the redevelopment of ‘land’, falling within paragraph 21(5), because the subject-matter of the redevelopment is ‘electronic communications apparatus’, which falls outside the statutory definition of ‘land’ in paragraph 108(1) of the Code, and does not form part of the ‘land’ itself.[63]Miss Dodds recognises that there is support for the contrary position in previous decisions of the Tribunal; but she points out that these are not binding on this Tribunal. In Chichester/Meyrick, and also in Vache Farm, the Tribunal assumed the point without the benefit of full argument. In Steppes Hill Farm the Tribunal fell into error when (at [260]) it regarded the ‘land’ as changed, and capable of being described as ‘redeveloped’, in circumstances where one mast was simply taken down and replaced by a new mast. Miss Dodds accepts that in that paragraph, the Tribunal did expressly consider the definition of ‘land’ in paragraph 108(1) of the Code. It follows that the Tribunal’s decision was not reached in ignorance of any material statutory provision. But she says that the FTT did not consider the several policy considerations which Miss Dodds urges upon this Tribunal. Further, Steppes Hill Farm was a termination case, involving paragraph 31(4)(c), rather than opposition to an application for an order conferring code rights under paragraph 21(5).[64]The Tribunal prefers Icon’s contrary submission that its proposed works constitute ‘redevelopment’ within the natural meaning of that word. Shorn of any reliance on the exclusionary definition of ‘land’ in paragraph 108(1) of the Code, Icon’s interpretation would seem to involve the proposition that the like-for-like replacement of one structure by another, utilising the same footprint, would not constitute ‘redevelopment’. That cannot be right. On this issue, the Tribunal derives no real assistance from assertions about the policy underlying the Code. These would seem to pull in different directions; and, in any event, policy considerations are of little real help in the present context where, as explained by the Tribunal in Chichester/Meyrick (at [7]): …it is unlikely that the Law Commission contemplated redevelopment of this nature when it recommended a provision to the effect of para.21(5). Under the scheme recommended by the Law Commission, such a redevelopment would have made no financial sense. Under that scheme the landowner would have been receiving a market rent for the site, even though the mobile operator would provide its own mast, so it would have been pointless and uneconomic for the landowner to install their own. But under the Code as enacted the landowner receives consideration that is likely to be considerably lower than the market rent previously payable.[65]Had this matter touched upon virgin territory, there might have been some force in the point that Miss Dodds makes about the exclusionary definition of ‘land’ in paragraph 108(1) of the Code. The Tribunal accepts Miss Dodds’s submission that it is no answer to this point for Icon to assert that it is developing the site as freeholder because, when deciding whether paragraph 21(5) is engaged, one must look to the scope of the proposed works through the prism of the Code. However, this point has already been authoritatively determined in Icon’s favour by the Chamber President (Edwin Johnson J) in Steppes Hill Farm; and there is no good reason why this Tribunal should not follow that decision, and every reason why it should. Miss Dodds accepts that (at [260]), the Tribunal in Steppes Hill Farm expressly considered the definition of ‘land’ in paragraph 108(1) when arriving at its conclusion that ‘land’ was ‘redeveloped’ when an existing mast is simply taken down and replaced by a new one. The reason why the ground of opposition failed in that case was because the works had already been carried out. As the Tribunal said at [292]:
“… an intention to redevelop cannot exist in relation to works of redevelopment which have already been carried out. A person cannot intend to do that which has already been done.”
[66]Whilst Steppes Hill Farm was a termination case, involving paragraph 31(4)(c), rather than opposition to an application for an order conferring code rights under paragraph 21(5), this cannot make any difference to the meaning and scope of the redevelopment ground of opposition given that the wording of the two sub-paragraphs is the same. Miss Dodds rightly points out that the Upper Tribunal is not bound by its own previous decisions (nor, indeed, by decisions of the High Court). Whilst this is correct, nevertheless, and in keeping with the practice of the High Court, in the interests of judicial comity, and to avoid confusion on questions of legal principle, a single judge of the Upper Tribunal will normally follow the decisions of another single judge, even though s/he is not bound to do so: see 4-6 Trinity Church Square Freehold Limited v Corporation of the Trinity House of Deptford Strond [2016] UKUT 484 (LC), [2017] L & TR 25 at [32]. Where the Tribunal has already pronounced upon the true interpretation of a statutory provision of general application, the overarching imperatives of certainty in the law, the need to avoid relitigating the same issue on future occasions (with potentially different outcomes), proportionality, the saving of time and expense, and the avoidance of undue demands falling upon the allocation of scarce tribunal resources, all point to the desirability of the Tribunal refraining from revisiting a prior determination unless the later Tribunal is convinced that the previous interpretation is clearly wrong. That is neither laziness, nor cowardice, on the part of the later Tribunal: it is simple common sense. The Tribunal therefore declines On Tower’s invitation to revisit the correctness of the interpretation of ‘redevelopment’ adopted by the Tribunal in Steppes Hill Farm. That may be a matter for the Court of Appeal on a future occasion. The Tribunal dismisses this ground of On Tower’s cross-appeal. (4). MNO migration:[67]The Tribunal can see some force in Miss Dodds’s submission (outlined above) that nothing in the reasoning of the House of Lords in the Westminster case (or in the later decision of the Court of Appeal in the Humber Oil Terminals case which followed it) supports the proposition that one must accelerate the date of the site owner’s entry into possession to the date of the hearing for the purposes of determining whether it has made out the ground of opposition to a claim to an agreement conferring code rights on an operator under paragraph 21(5) of the Code. However, it is unnecessary for this Tribunal to decide this point on the present appeal. Since anything that the Tribunal might say would be obiter, it is preferable to leave this point for determination by the Tribunal in a future case, where it would be relevant to the actual outcome. (5). Time for negotiations with the MNOs[68]On Tower complains that having found that Icon would not commence its works until it had brought the MNOs over to its proposed new mast, the FTT made no findings as to how long this would take. The Tribunal cannot see that this omission can give rise to any conceivable ground of cross-appeal. At [138], the FTT found, on the balance of probabilities, that the most likely outcome was that the MNOs would not migrate to Icon’s new tower, and that Icon had failed to demonstrate that there was a reasonable prospect that they would do so. There was therefore no scope for any finding as to how long this would take since, on the FTT’s findings, it was simply not going to happen. In any event, on the FTT’s findings, Icon had failed to establish, as it was required to do, that it had any real prospect of commencing its work within a reasonable time because a pre-condition of such commencement was the migration of the MNOs to Icon’s proposed new mast which, on the FTT’s findings, was not going to happen. (6). Franses conditionality[69]Yet again, the cross-appeal on the issue of Franses conditionality strictly does not fall for determination. The Tribunal should, however, briefly address this issue since On Tower’s submissions in support of this aspect of its cross-appeal would appear to indicate a misunderstanding as to the true applicable test.[70]At [140], the FTT quoted from the ‘acid test’ in the Tribunal’s decision in Chichester/Meyrick (at [37]) thus: The acid test is whether the respondents would intend to do the same works if the claimants did not seek Code rights. In oral submissions, Mr Lees KC said that he took no issue with that formulation. Applying that ‘acid test’, the FTT found (at [143]) that … Icon would intend to do the same works even if Icon did not seek Code rights. The second reference to ‘Icon’ is clearly an error for ‘On Tower’. In light of Mr Kay’s evidence (recited at [98]) that if On Tower were to vacate the site voluntarily, “Icon would still build their tower”, that finding was clearly open to the FTT on the evidence.[71]Mr Lees KC submits that the FTT fell into error at [143] by focussing upon Icon’s motive. He submits that this is not the correct test. Mr Lees KC emphasises that this was a ‘lawyer-led’ solution. The works were a response to On Tower’s assertion of a claim to code rights. He relies on the statement at [39] of the decision in Chichester/Meyrick: … the policy of the Code is to enable Code operators to acquire Code rights and to do so at a price calculated on the basis of assumptions that are favourable to them. A redevelopment conceived purely to prevent the acquisition of Code rights, which the relevant person would not pursue if Code rights were not sought, will not satisfy the test in para.21(5) for the reasons given by the Supreme Court in S Franses Ltd. Such an intention is not the unconditional intention that Parliament sought to protect. Mr Lees KC says that the entire development proposal to go over the top of the existing mast was conceived to prevent the acquisition of code rights. The fact that this decision may been supported by a legitimate business aim is not a sufficient answer to On Tower’s objection based upon Franses. Had the FTT asked itself the right question: Would Icon have intended this development had On Tower not asserted a claim to code rights, the answer is clearly: No. The FTT did not apply the correct legal test; and it asked itself the wrong question by focusing solely upon the question of Icon’s motive. Icon would never have chosen to redevelop this site had On Tower left it voluntarily. The prevention of the acquisition of code rights was not merely a collateral effect of Icon’s proposed redevelopment (as the FTT stated at [143]): it was the very genesis, and objective, of the development proposal.[72]The Tribunal detects a tension between the citation from Chichester/Meyrick at [39] on which Mr Lees KC places reliance and the earlier statement of the ‘acid test’ at [27]. This tension can be explained by looking at an earlier passage from [39] of the decision of the Tribunal in Chichester/Meyrick, as follows: The respondents’ stated intention is not to remove the tenant and retain possession of the site, as it was in S Franses Ltd; it is to get possession, redevelop, and then allow the claimants back in on the respondents’ own terms. If their intention to do so is only to prevent the acquisition of Code rights, then that is an intention to frustrate a central policy of the Code. But the ‘acid test’ remains the same: whether, as the FTT correctly stated:
“Icon would intend to do the same works even if [On Tower] did not seek Code rights”
. The FTT found that it would. That is not Franses conditionality.[73]That analysis is supported by two passages in the concurring judgment of Lord Briggs JSC (with whom Lady Black and Lord Kitchin JJSC agreed) in Franses where he discusses the reasons why legitimate recourse may have to be had to a forensic examination of a landlord’s purpose or motive (although the whole of this section of Lord Briggs’s judgment should be borne firmly in mind). First (at [28]): Parliament has chosen to define this ground of opposition by reference to intention, but cannot have intended thereby to enable a landlord to defeat a claim under the Act by asserting and proving an intention to do works purely for the purpose of getting rid of the tenant, such that the works (or the qualifying works) would not be done if the tenant left voluntarily. Then (at [31]): The only legitimate purpose of the examination of purpose, beyond testing the genuineness of the landlord’s intention, will be to enable the court to decide whether the landlord would have done the relevant works if the tenant had left voluntarily. This is, as Lord Sumption JSC explains, the acid test of the type or quality of intention under section 30(1)(f).[74]The Tribunal finds that Mr Lees KC’s submissions themselves fall into error by focussing upon the fact that that this was a ‘lawyer-led’ solution, which was responding to On Tower’s assertion of a claim to code rights. That may have been the genesis of Icon’s reformulated development proposal. But that does not matter provided (as the FTT found, and was entitled to find) Icon would intend to do the same works even if On Tower did not seek code rights.[75]For these reasons, the Tribunal would dismiss this ground of On Tower’s cross-appeal.

Disposal

[76]For these reasons, Icon’s appeal is dismissed. In consequence, the Tribunal makes no order upon On Tower’s cross-appeal. His Honour Judge David Hodge KC 27 February 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.

Cited in 1 later judgment