Upper Tribunal determines there is no jurisdictional requirement that an operator must be exercising a Code right for the “statutory purposes” upon renewal
In On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] UKUT 286 (LC), known as Lupton Road, the Upper Tribunal (Judge Cooke) determined a preliminary point arising in the appeal; namely whether there is a jurisdictional requirement that an operator be exercising Code rights for statutory purposes, as the FTT had held below. She held that there was no such requirement.
On Tower argued that there is no such jurisdictional requirement: all that is required is that there is a Code agreement (i.e. an agreement for a right listed in paragraph 3 of the Code which is granted for the statutory purposes). APW argued that an operator must show both (i) its general undertaking as a Code operator (the general test), and (ii) a site-specific statutory purpose for the Code rights granted (the site-specific test).
The Upper Tribunal held that (@ [122]):
“In my judgment APW’s argument cannot succeed. On Tower’s construction of paragraph 33 is correct; in order for the FTT to have jurisdiction to make an order under paragraph 34, all that must be shown in order to demonstrate that an operator is a party to a Code agreement is that the agreement contains one or more of the rights listed in paragraph 3 and that those rights were conferred on an operator (again as defined in paragraph 2)“for the statutory purposes”. Those purposes will normally be ascertained from the terms of the agreement, although occasionally evidence about the factual context may be needed if the agreement itself does not make the purpose clear.”.
The Judge accepted that site specific evidence may be required on the issue as to the exercise of the Tribunal’s discretion as to what order to make under Paragraph 34 (@ [124]:
“Once through the gateway the operator will have to demonstrate that the rights it wants are Code rights, and will normally provide information about its activities on the site and its business needs (see paragraph 34(13)). That is where the site-specific factual information is relevant. Evidence about the ownership of infrastructure may be relevant, depending on the nature of the site provider’s opposition, but no rule that the WIP must own its ECA can be discerned in the Code...”.
She did note in passing, that “But as a general observation it is correct that an operator must produce site-specific evidence for the FTT to have jurisdiction to make an order under paragraph 20."
The judgment of Judge Cooke can be viewed in full here.
The remainder of the appeal is currently scheduled to be heard on 8-9 December 2026.
Wayne Clark KC and Tom Morris appeared for the appellant, AP Wireless II (UK) Ltd, and were instructed by Daniel Cuthbert and Ella Carroll of Freeths LLP. Kester Lees KC and Taylor Briggs appeared for the respondent (and cross-appellant), On Tower UK Ltd, and were instructed by Alicia Foo, James Lilley, and Connor Merrifield of Pinsent Masons LLP.
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