The appellant, On Tower is a provider of infrastructure for network operators and a "code operator". It was granted a 20-year lease over a site at Queens Oak Farm, Towcester which expired in October 2016. Prior to the expiry of the lease, On Tower had rights under the statutory predecessor to the Electronic Communications Code. After the expiry of the lease, On Tower remained in occupation of the site. The respondent, AP Wireless acquired the freehold to the site in 2014. In July 2019, On Tower gave AP Wireless notices seeking orders under paragraphs 20 and 27 of Part 4 of the Code which gives the court power to impose an agreement by which a person confers or is bound by Code rights. A reference was made to the Upper Tribunal (Lands Chamber) in August 2019. The Upper Tribunal struck out the reference finding that On Tower did not have Code rights and the Tribunal did not have jurisdiction to impose an agreement under para 20 of the Code. On Tower now appeals to the Supreme Court.

The First Respondent owns a site called Windsor House. The Appellant has a tenancy on part of the roof of Windsor House for the purposes of providing telecommunications services. The Appellant’s tenancy pre-dates the entry into force of the Code and is protected by the LTA 1954. The Second Respondent has a 99-year lease with the First Respondent over the roof of Windsor House, which is subject to the Appellant’s tenancy. The Appellant asked the Upper Tribunal to impose an agreement under para 20, Part 4 of the Code (a Code agreement) between the Appellant and the Second Respondent. The Second Respondent argued that Part 4 of the Code is not available to the Appellant as the occupier of the site. The Upper Tribunal found it had no jurisdiction to impose a Code agreement where the operator is in occupation of the land under a tenancy protected by the LTA 1954. The Court of Appeal dismissed the Appellant’s appeal.

The Respondent owns a field. The Appellant is a joint venture formed by Vodafone Ltd and Telefonica UK Ltd to own and manage a combined portfolio of such sites. Vodafone Ltd own a telecommunications mast on the edge of a field. Vodafone Ltd had a ten year lease to that site, running from 2014. This lease granted Vodafone Ltd the right to install and use the mast. Telefonica UK Ltd also use the mast. Vodafone Ltd’s lease expired in 2014, and it was served with a notice to quit in 2017. The Code says that an operator of telecommunications equipment may acquire certain rights under the Code by agreement or by order of the Upper Tribunal. The Appellant sought those code rights from the Respondent. The Upper Tribunal said that, because the Respondent was not in occupation of the land (Vodafone Ltd was), the Upper Tribunal had no jurisdiction to make an order. The Court of Appeal refused the Appellant’s appeal.