Moving into ‘the valley of decision’ to defeat Code rights – CTIL v Firoka

CTIL v Firoka (Kings Cross) Ltd clarifies what a site provider needs to show to defeat a Paragraph 20 Notice and reassures site providers that Code rights, derived from the Electronic Communications Code, do not give operators total rights over their land.

The Electronic Communications Code (the Code), as set out in Schedule 3A of the Communications Act 2003, confers substantial rights on operators. Paragraph 21(5) of the Code outlines the statutory ground for a site provider to resist a Paragraph 20 order if the site provider intends to redevelop the land and could not ‘reasonably do so’ if an order was made. In CTIL v Firoka, Firoka relied on Paragraph 21(5) to oppose a Paragraph 20 application made by CTIL. The threshold to satisfy Paragraph 21(5) is notoriously high, but the First Tier Tribunal (FTT) held that Firoka demonstrated a ‘firm, settled and unconditional intention’ to carry out their proposed redevelopment works; that the installation of electronic communications apparatus as proposed by CTIL would prevent these works; and finally that Firoka’s intention was reasonably achievable and genuine. This case helps demonstrate to site providers the extent of supporting evidence they will need to collate to successfully oppose a Paragraph 20 application.

The case concerned the Crowne Plaza Hotel located on Kings Cross Road, London. In the context of the Code, Firoka – the respondent – is the site provider, and CTIL (Cornerstone Telecommunications Infrastructure Ltd)– the claimant – is the telecoms operator. CTIL initially served a notice under Paragraph 20 of the Code, requesting Code rights to install electronic communications equipment on the hotel roof. Following this, Firoka made an application for planning permission to make various changes to the roof of the hotel, including to fix issues with a dated cooling/heating system. Planning permission was granted in May 2025. Firoka opposed CTIL’s Paragraph 20 application, arguing that the installation of telecoms equipment would prevent the necessary redevelopment of the roof.

For Firoka to defeat CTIL’s application, they had to satisfy the FTT that they had demonstrated a genuine intention to redevelop and this redevelopment would be prevented by allowing CTIL’s application to succeed.

The FTT applied the two stage test for redevelopment set out in Cunliffe v Goodman (1950), in which the respondent must demonstrate that:

• They have a reasonable prospect of carrying out the redevelopment works and;
• They have a firm, settled and unconditional intention to do so.

The objective test – reasonable prospects

Firoka had to prove that they had a reasonable prospect of carrying out the redevelopment works. This evidence included the granted planning permission; financial statements and information,  structural engineering calculations and drawings. There was an abundance of specific evidence demonstrating that the redevelopment works had progressed from initial  stages to a point where real and tangible evidence of the specific works was evident.

The FTT considered  that Firoka did have a reasonable prospect of carrying out their proposed redevelopment works and that the first limb of the objective test had been satisfied.

The subjective test – intention

CTIL argued that Firoka’s intention was only to carry out ‘limited’ works, which did not satisfy Paragraph 21(5) of the Code or the test from Cunliffe. The FTT disagreed and held that Firoka had demonstrated a firm, settled and unconditional intention to redevelop.

The FTT held that ‘by the date of the hearing, Firoka had moved out of the zone of contemplation and into the valley of decision.’ Their intention to carry out the works was not speculative: it was firm, settled and unconditional.

Other considerations

The FTT applied several other tests, principally deriving from case law. The FTT were satisfied that Firoka would have carried out the same redevelopment works even if CTIL had not sought the code rights and that the time proposed by Firoka for the commencement of the works was also reasonable.

Conclusion

The FTT determined that Firoka would not be able to redevelop the roof if the Order as required by CTIL was made.

Whilst the case marked a victory for site providers seeking to oppose Code rights, it does nonetheless clarify the high bar that must be met in order to successfully oppose a paragraph 20 notice. The Electronic Communications Code does not give operators absolute rights but it is clear that siter providers must be armed with substantial supporting evidence should they wish to oppose.