AP Wireless II (UK) Limited v On Tower UK Limited

Part 5 jurisdiction under the Electronic Communications Code turns on the statutory gateway in paragraph 33, not on proof that an operator has exercised Code rights or has current site-specific plans. An operator is a party to a Code agreement where an agreement confers a paragraph 3 right on an operator for the statutory purposes. Purpose is assessed objectively from the agreement and, if needed, factual context at the time of conferral. Once the gateway is met, the tribunal has a discretion rather than an obligation to renew or modify rights. Site-specific evidence is relevant at that stage, which requires consideration of all the circumstances and the factors in paragraph 34(13).

AP Wireless II (UK) Limited, a site aggregator and landowner, and On Tower UK Limited, a wholesale infrastructure provider, were parties to expired agreements concerning eight telecommunications mast sites. On Tower gave notices seeking termination and new agreements under Part 5 of the Electronic Communications Code. AP Wireless challenged the First-tier Tribunal’s jurisdiction, arguing that On Tower had to show that Code rights were being exercised for the statutory purposes. The FTT held that exercise was required at the date of conferral and at the time of renewal, and concluded that it had jurisdiction. AP Wireless appealed findings flowing from that decision, and On Tower cross-appealed on estoppel. During the appeal, the Upper Tribunal raised the interpretation of the FTT’s decision and invited further submissions. The central issue was what an operator must establish for the FTT to have jurisdiction under paragraph 34.

1. The FTT’s exercise requirements were set aside. The judge had decided that jurisdiction required proof that Code rights were being exercised, both at the date of conferral and at renewal. The Upper Tribunal held that this was what the FTT had meant, but that the requirement was wrong in law and inadequately explained. It set aside the findings at paragraphs 24, 36, 97 and 98 and substituted its own answer to the jurisdiction question.
2. The paragraph 33 gateway is limited to its statutory terms. Jurisdiction to make an order under paragraph 34 requires an application after a paragraph 33 notice and the six-month period without agreement, made by an operator or site provider who is a party to a Code agreement. An operator is a party to such an agreement where it confers one or more paragraph 3 rights on a paragraph 2 operator for the statutory purposes.
3. Purpose is assessed at conferral. The purpose of a right is determined objectively from the agreement’s terms. Factual context at the time of conferral may be needed where the terms do not make the purpose clear. Code-agreement status does not fluctuate with later activity. The operator need not prove exercise of rights at any time, nor provide site-specific evidence of current activities or purposes to establish jurisdiction. The Code does not impose a general requirement that a wholesale infrastructure provider own the apparatus.
4. Jurisdiction is distinct from the paragraph 34 discretion. Passing the gateway does not entitle an operator to new rights. At the discretionary stage, the FTT considers all the circumstances, including the matters in paragraph 34(13). Site-specific evidence is relevant and will be needed to persuade the FTT to make an order. If an operator makes no use of the land and has no business need for it, a new agreement will not be ordered.
5. AP Wireless’s ground 1A(1) succeeded; its grounds 1A(2)–(4) failed. On Tower’s grounds succeeded. The parties were directed to make further submissions about the remaining consequential findings and the status of On Tower’s cross-appeal. In addressing the jurisdiction issue raised during the appeal, the Tribunal invited submissions and permitted the parties to seek amendments, referring to Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC).

1. Upper Tribunal (Lands Chamber): [2026] UKUT 286 (LC) . Set aside the FTT’s jurisdiction findings and substituted the paragraph 33 gateway test. Further directions were given on the remaining appeal grounds and cross-appeal.
2. First-tier Tribunal (Property Chamber): Preliminary decision on agreed questions of law (citation not stated). Held that exercise of Code rights was required at conferral and renewal, and found jurisdiction in relation to the eight sites.