EE Limited & Anor v Clocktower Investments Limited

For the purposes of section 23(1) of the Landlord and Tenant Act 1954, “premises” may include an easement which, when exercised, is occupied for business purposes. However, an incorporeal right must be a recognised proprietary right, such as an easement; purely contractual rights do not qualify.

Where a lease grants apparatus rights to benefit leased land intended for use as a telecommunications base station, those rights may accommodate the land and constitute easements. The tenant’s failure to occupy the leased land does not prevent the tenancy from falling within Part II of the 1954 Act. The appeal was dismissed, although the statutory continuation of the tenancy may create difficulty in obtaining a renewed tenancy of the relevant rights.

The appellants held a lease of undeveloped land adjoining the respondent’s clocktower. The lease also granted rights to erect and maintain telecommunications apparatus on the clocktower and to install related safety equipment. The proposed base station on the demised land was never built, and the appellants occupied no part of that land when the contractual term expired.

The First-tier Tribunal struck out the appellants’ reference seeking new rights under Part 5 of the Electronic Communications Code, holding that the lease was protected by Part II of the Landlord and Tenant Act 1954. The central issue was whether the apparatus rights were proprietary premises capable of occupation and, if so, whether they were easements benefiting the demised land.

1. Appeal dismissed. The appellants’ tenancy was one to which Part II of the Landlord and Tenant Act 1954 applied. They were therefore unable to seek new Code rights under Part 5 of the Electronic Communications Code.
2. Section 23(1) concerns real property and interests in land capable of being occupied. It does not extend to purely contractual rights. The relevant apparatus rights therefore had to fall within a recognised category of proprietary right. On the facts, the only possible category was an easement.
3. The four characteristics of an easement identified in In Re Ellenborough Park [1956] Ch 131 and confirmed in Regency Villas Title Ltd v Diamond Resorts Ltd [2019] AC 553 were satisfied. The demised land was the dominant tenement. The apparatus rights gave it practical utility because the contemplated base station was intended to receive and transmit telecommunications signals using apparatus positioned on the adjoining clocktower.
4. The fact that the base station was never built did not prevent the rights from being easements. The question was assessed at the date of grant, and a contemplated use could accommodate the dominant tenement. It was unnecessary to decide whether the appellants’ entire telecommunications network could constitute the dominant tenement.
5. The equipment cabinets and fencing did not oust the respondent from the servient tenement to an impermissible degree. The respondent retained use and control of the clocktower and surrounding estate. The ouster principle therefore did not prevent the paragraph 2 right from being an easement.
6. The respondent’s alternative encroachment argument was unnecessary to decide and, in any event, the principle in Smirk v Lyndale Developments Ltd [1978] 1 Ch 317 did not apply where the tenant’s presence resulted from an expressly granted right.

• First-tier Tribunal (Property Chamber): On 3 June 2025, struck out the appellants’ notice of reference seeking renewal of Code rights under Part 5 of the Electronic Communications Code.
• Upper Tribunal (Lands Chamber): Dismissed the appeal and upheld the conclusion that the tenancy was protected by Part II of the Landlord and Tenant Act 1954.