Signal Strength & Security of Tenure: EE v Clock Tower Investments

Does a telecoms operator need to physically occupy the demised premises for the Landlord and Tenant Act 1954 to apply? According to the Upper Tribunal in EE v Clock Tower Investments Limited [2026] UKUT 163 (LC), the answer may be far more complicated than expected.

In this episode, Richard and Lizzie unpack the surprising decision that a telecommunications lease could still benefit from the protection of the 1954 Act even where the operator did not physically occupy the demised ground itself, instead using adjacent roof space through installation and access rights.

The case raises important questions around what “occupation for business purposes” really means.

Richard discusses:
•Why the Upper Tribunal decided the 1954 Act applied
•The significance of business occupation under the Act
•The difference between physical possession and operational control
•The wider implications for landlords, operators and property lawyers.

Relevant cases:
Land Reclamation Co Ltd v Basildon District Council [1979]
Pointon York Group Plc v Ann Doreen Poulton (2006)
Re No 1 Albemarle Street [1959]
Moody v Steggles (1879)
Re Ellenborough Park [1955]
Re Salvin’s Indenture [1938]
Stenner v Teignbridge DC [2025]
AP Wireless II (UK) Ltd v On Tower (UK) Limited [2025]

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking. 

This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

Lizzie Collin
Welcome back to the Unpacking the Case podcast. Today we are looking at a really interesting upper tribunal decision involving EE and Clock Tower Investments Limited and it's one of those cases that sounds niche at first but actually has some very significant implications for telecom leases and the Landlord and Tenant Act 1954. The issue was surprisingly simple. Can a telecoms operator benefit from the protection of the 1954 Act if they're not physically occupying the actual demise premises? In this case, the operator's equipment was effectively being used through rights over adjacent roof space and access rights, rather than traditional occupation of the land itself. The tribunal said yes, the 1954 Act could still apply, which means there is a very different renewal process. Today we're going to unpack why the concept of occupation for business purposes is becoming increasingly blurred. Good morning, Richard.

Richard Snape
Good morning, and what a pleasant one, Lizzie.

Lizzie Collin
I know, we're just bemoaning the rain in nearly the end of May, and it's rainy and miserable today, but we're going to cheer ourselves up with a podcast. So we're here to talk about a case from the Upper Tribunal, a judgement on the 30th of April, and the case is called EE and Clock Tower Investments Limited, and it's all about easements. So do you want to kick us off with some background facts and some background law?

Richard Snape
It's about communications equipment as well. And it's about the 54 handhold and turn tack. So it brings in lots of areas. Yeah, I mean, it's, I'll sort of steer clear as best I can of the communications equipment side of things, because it's highly specialist and getting more and more difficult every day than another case or two being decided. But the basically EE and H3G to go to lease of this land on June 11th, 2004, next to a clock tower in Gray's and Essex, the tunnel at the entrance of the tunnels estate. Don't know Gray's never been there. But They took back a lease for their communications equipment, but never actually occupied the premises, this piece of land. But they did have ancillary rights, which they'd exercised to put communications equipment on the clock tower, anywhere on the clock tower, and they had actually done so. And at a later stage, well, the contractual term expired on May 31st, 2022. and they wanted to claim a renewal under the Electronic Communications Code, claims of new code rights under the code. The code came into force on December 28th, 2017. It's been a bit of an issue for some time. There have been a case, a Supreme Court case in 2022, Cornerstone Telecommunications. and Compton Beecham, which had basically said if you come within the 54 Landlord and Tenant Act, you can't exercise the code rights. And equipment prior to the Digital Economy Act coming into force on December the 28th, 2017 would come within the 54 Landlord and Tenant Act. So the question was basically, does the 54 Act apply in this particular situation? Because for the 54 Act to apply, you have to occupy the premises, at least partly for business purposes under a lease. And they obviously weren't occupying the demised land, but can they occupy under the ancillary rights, basically easements over the clock tower? And that's what it was all about, Lizzie. It's a complex one.

Lizzie Collin
So what happened in the upper tribunal?

Richard Snape
Well, they more or less confirmed the first tier tribunal decision. There's a series of cases basically going back some time about whether you can occupy or not and by virtue of an easement. There was a case called Land Reclamation, the Court of Appeal case Land Reclamation and Basildon District Council. Seems that Essex is big on these things. But Basildon District Council had basically said you couldn't occupy a right of way, an easement for a right of way. An incorporeal hereditement wouldn't be premises that were occupied. But then there was another Court of Appeal case called Point in York v Poulton in 2007 where they said that wasn't a blanket rule, certain types of easement could be occupied and that was involving car parking. They basically had sublet for three days less than the head lease premises, but retain car parking easements. Don't get me onto car parking. It's a topic in its own right. You can have an easement to park your car, but they basically said it was an easement in these circumstances. And that was sufficient occupation of premises to allow the 54 Land Building Tenants Act to apply and have a 54 admin. And there'd been other sort of cases that they drew attention to in 1959 case called #1 Albemarle Street, where they decided that the ability to, you know, you had leasehold premises, business premises, and they had a right to put in advertising signs on neighbouring property. And in that particular case, the court decided that the advertising signs were purely contractual. I take issue with that was a case called Rudy and Steggles, which said the advertising hoardings on land cambion easement. But that wasn't really discussed, but it was purely contractual. But at the discretion of the court on a 54 hour renewal, I mean, you know, they could still be sort of added if you like. So it seems that you can, according to, well, some of the cases at least, of occupation under an easement. But to have an easement, you also have to have a dominant and servient tenement. They discussed the Ellenborough Park in 1956, Western Super-Mare's finest hour. You have to have a dominant and servient tenement and a benefit to the dominant tenement to have an easement. So where's the dominant land? And they said that the demised premises next door, next to you, could be the dominant land, even though it wasn't occupied. But in any case, there was a 1938 controversial case called Resalvin, Resalvin's Indenture, which said that the dominant land, there was a water company and the dominant land would be in the sort of, you know, the premises itself, plus all the kind of services and the like could constitute the dominant land. So there was a dominant tenement and my favourite, they didn't deal with it in the detail I would have liked, but they discussed whether, well, you can't have an easement of exclusive possession, you can't oust the servient owner. Do you remember we did a case called Stenner and Tainbridge District Council last year about a car park in Teignmouth in Devon, where they discussed the various cases and and said that storing boats to the corner of this car park, which I've actually parked my car in, then that couldn't be an easement because you were ousting the paper owner from the land. But on the facts here, they said that there was no exclusive possession and they didn't really discuss Stenham in Cambridge, which is just as well because it's due to be heard by the Supreme Court. It leapfrogged the Court of Appeal and it's going to be heard by the Supreme Court in July. So we'll have a final disk, solution or answer to that particular area later this year. But they decided it was an easement. They decided that you can occupy premises under an easement. The 54 landlord and tenant attack applied and therefore you couldn't claim code rights.

Lizzie Collin
Any final words on this one, Richard?

Richard Snape
Yeah, it's, I suppose, yet another case on whether 54 act applies or not. We've done quite a few of those recently. Remember the two AP wireless and on tower cases where on one occasion they said there was no fixed maximum duration because either side could give 12 months notice at any time, no earlier than the end of the 10 year period. And also another AP wireless to an on tower case where they decided on rather tenuous grounds it's a tenancy of will. So that particular issue is not gone away. And I say it depends, I think, quite very much on its facts. But keep your eyes open later this year for whether you can have easements of car parking and storage and such likes.

Lizzie Collin
There we go. Thank you very much, Richard.

Richard Snape
Thanks a lot, Lizzie.