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

Facts

On Tower UK Limited, a wholesale infrastructure provider, and AP Wireless II (UK) Limited, a site aggregator, are parties to expired agreements relating to telecommunications mast sites. On Tower served notices under paragraph 33 of the Electronic Communications Code (Schedule 3A to the Communications Act 2003) requiring termination of the existing agreements and the grant of new ones, and, no agreement having been reached, applied to the First-tier Tribunal for orders under paragraph 34 of the Code. APW denied that On Tower was a party to a Code agreement, contending that On Tower owned no apparatus on the sites and was merely land banking. Preliminary questions of law were tried. The FTT (Judge David Jackson) held at its paragraphs 24 and 97 that there is a jurisdictional requirement that an operator be exercising Code rights for the statutory purposes, and at paragraphs 36 and 98 that exercise need be shown only at the date of conferral; the Upper Tribunal found that the judge had in substance required exercise to be proved twice, at conferral and again at the Part 5 application. The FTT made consequential findings and held it had jurisdiction over eight sites. APW appealed those consequential findings on nine grounds, with On Tower cross-appealing on estoppel. At the hearing the Upper Tribunal raised of its own motion, as a jurisdictional point, the correctness of paragraphs 24, 36, 97 and 98, and both parties then sought permission to appeal them.