The case of EE Limited and Hutchison 3G UK Limited v Clocktower Investments Limited [2026] UKUT 163 (LC) provides clarity on the issue of operators seeking to bypass the Landlord and Tenant Act 1954, to obtain new agreements on more favourable terms under the Electronic Communications Code.
EE Limited and Hutchison 3G UK Limited (the operators) own telecommunications apparatus on parts of the Clocktower in Grays, Essex, pursuant to a lease dated 11 June 2004, the contractual term of which expired in 2022 (the Lease). The Lease grants the operators the right to install equipment on the Clocktower itself as well as a parcel of land at the base of the tower in the Demised Premises.
The Lease was not contracted out of the Landlord and Tenant Act 1954 (the 1954 Act). Nevertheless, when the Lease expired, the operators served notices pursuant to paragraph 33(1)(d) of the Code seeking a renewal lease.
The operators sought to renew the Lease and obtain new rights under Part 5 of the Code, rather than under the 1954 Act, as Code agreements often result in lower rents and more favourable statutory provisions for them. Clocktower Investments Limited (the site provider) resisted that approach.
The key question was whether the operators were occupying the premises for the purposes of section 23 of the 1954 Act.
The Lease granted the operators the right to erect a Radio Base Station in the Demised Premises in accordance with plans in the Lease. However, whilst telecommunications equipment was installed in approximately the same location indicated in the Lease, the proposed Radio Base Station was never constructed on the Demised Premises.
The operators argued that the Lease was not a subsisting agreement under the 1954 Act as, although the Demised Premises was capable of being occupied, it was not currently occupied by a tenant for the purposes of a business (as necessary under section 23 of the 1954 Act).
However, the judge found that the rights granted to install and maintain apparatus on the Clocktower were easements, and the operator's use of them amounted to occupation for business purposes. It was held that, whilst the operators did not use the Demised Premises as originally intended when the Lease was granted, this did not prevent the 1954 Act from applying as the statutory concept of "premises" includes incorporeal rights such as easements.
As the Lease was held to fall within the protection of Part II of the 1954 Act, it could not be renewed under Part 5 of the Code but only in accordance with the 1954 Act framework subject to the occupier going into occupation of the demised premises before the continuation tenancy expired. As such, the Tribunal had no jurisdiction to consider the application under Part 5 of the Code and the reference was struck out.
As ever, the question as to whether a lease renewal should proceed under the 1954 Act or the Electronic Communications Code will continue to be dependent upon the specific dates, drafting and facts of each site. However, this case demonstrates that operators cannot simply bypass the 1954 Act to achieve more favourable terms and all parties should carefully consider the appropriate lease and relevant facts.
