Upper Tribunal hands down judgment in On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] UKUT 245 (LC)
The Upper Tribunal today handed down judgment in On Tower UK Ltd v AP Wireless II (UK) Ltd [2026] UKUT 245 (LC), known as Vulcan Arms. The appeal succeeded on two grounds (which, as the judge noted, were uncontroversial) but failed on the third; the Upper Tribunal held that the FTT had ‘reached the right answer for the wrong reason’. The Upper Tribunal therefore upheld (for different reasons) the decision of the FTT that a direction pursuant to s.106 of the Communications Act 2003 conferring Code powers on an operator (On Tower) for an electronic communications network did not enable it to suggest that it was protected by the Code with respect to an agreement entered into with a site provider (AP Wireless) for the provision of infrastructure, such as a tower. The agreement was not Code protected, having been entered into at a time when the direction obtained by the operator under the 2003 Act was limited to the provision of an electronic communications network, which it did not operate at that site.
Kester Lees KC and Taylor Briggs appeared for the appellant, On Tower UK Ltd, and were instructed by Alicia Foo, James Lilley, and Connor Merrifield of Pinsent Masons LLP. Wayne Clark KC and Tom Morris appeared for the respondent, AP Wireless II (UK) Ltd, and were instructed by Daniel Cuthbert and Ella Carroll of Freeths LLP.
The Judgment of Judge Cooke can be viewed here.
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