EE Limited v Clocktower Investments: when easements substitute for occupation under the 1954 Act

The Upper Tribunal (Lands Chamber) has dismissed an appeal by EE Limited and Hutchison 3G UK Limited against a decision striking out their notice of reference for new Code rights, confirming that their existing tenancy falls within Part II of the Landlord and Tenant Act 1954. The judgement, handed down on 30 April 2026 by Martin Rodger KC, Deputy Chamber President, turns on a narrow but consequential question: whether rights to erect telecommunications apparatus on a clocktower could constitute "premises" occupied by a tenant for the purposes of section 23(1) of the 1954 Act, even where the demised land itself had never been physically occupied.

The background concerns a lease granted in 2004 to Orange (subsequently assigned to the appellants) over an "L"-shaped parcel of undeveloped land at the base of a clocktower on the Tunnel Estate in Grays, Essex. The lease included ancillary rights to erect and maintain antennae and equipment cabinets on the clocktower itself. A Radio Base Station, which the lease contemplated would be built on the demised land, was never constructed. When the contractual term expired in May 2022, the appellants occupied no part of the demised premises — but their apparatus remained on the clocktower, exercised under the paragraph 2 right of the lease.

The First-tier Tribunal struck out the appellants' reference, finding that the rights to station apparatus on the clocktower amounted to incorporeal hereditaments capable of occupation within section 23(1). The appellants challenged that conclusion on four grounds.

The Deputy Chamber President agreed with the FTT that the relevant rights had to be classified as legal easements before they could amount to "premises" under the Act, rejecting the FTT's broader suggestion that any proprietary benefit in or over land might suffice. The categories of incorporeal hereditament, he held, are fixed as a matter of historic taxonomy and do not accommodate novel additions. However, on the question of whether the paragraph 2 right satisfied the conditions for a valid easement, the appeal failed.

On the requirement that an easement accommodate a dominant tenement, the Tribunal held that the demised premises — whose sole permitted use was as a radio base station — were plainly accommodated by rights enabling the tenant to mount antennae at height on the adjacent clocktower. The fact that the base station was never built did not undermine that analysis: easements can accommodate a contemplated use of the dominant tenement, and the right could not be stripped of its proprietary character merely because the parties' commercial arrangements evolved differently from their original expectations. The authority of Regency Villas Ltd v Diamond Resorts Ltd [2019] AC 553 supported that approach.

The "ouster" argument — that the appellants' security-fenced equipment cabinets so substantially excluded the respondent from the servient land as to prevent the rights from being easements — was also rejected. The servient tenement, properly construed, extended to the whole of the landlord's land edged in blue on the lease drawings, across which the respondent retained significant control and use, including the ability to permit other operators' apparatus above the appellants' cabinets.

The judgement nonetheless identifies a notable paradox flowing from the Court of Appeal's decision in Pointon York Group plc v Poulton [2007] 1 P&CR 115, on which the Tribunal was bound to proceed. If the easements constitute the only "premises" occupied by the tenant, and the demised land itself forms no part of the "holding" under section 23(3), there may be no corporeal property in respect of which the court can order a new tenancy under section 32(1). A court cannot create easements in gross, nor order a tenancy of incorporeal rights severed from a dominant tenement. The appellants may therefore enjoy statutory continuation without any practical right of renewal — a structural tension Rodger KC expressly declines to resolve in the absence of full argument.

The decision will be of significance wherever telecommunications Code operators hold leases combining demised land with ancillary apparatus rights, particularly where the corporeal demise has never been physically occupied. Any party seeking to invoke Code rights under Part 5 must first satisfy itself that the existing tenancy does not attract 1954 Act protection — a question that, as this case demonstrates, may turn on the characterisation of rights exercised entirely off the demised premises.