AP Wireless II (UK) Limited v On Tower UK Limited
Decision date: 29 July 2026
Neutral citation: [2026] UKUT 286 (LC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This appeal concerned whether Part 5 paragraph 33/34 jurisdiction requires an operator to be actually "exercising" Code rights. The Upper Tribunal set aside the FTT's statements that actual exercise must be proved and held that jurisdiction is established objectively if the agreement conferred one or more paragraph 3 rights on an operator for the statutory purposes at the conferral date. Site‑specific factual evidence about exercise of rights is generally not required at the jurisdictional gateway but remains relevant to the Tribunal's discretion under paragraph 34.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
The binding ratio is that paragraph 33 jurisdiction is satisfied by objective proof that the existing agreement conferred paragraph 3 Code rights on an operator "for the statutory purposes" at the time of conferral; the operator's status is fixed by that conferral (usually apparent from the agreement's terms) and there is normally no separate jurisdictional requirement to show actual exercise of those rights.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The tribunal observed (obiter) that in rare cases where an agreement's terms do not make the conferral purpose clear, contemporaneous factual context may be admissible to show the rights were conferred for statutory purposes, and noted how paragraph 31(4)(d) operates where circumstances change. These remarks were not treated as altering the objective conferral test.