Writing in NLJ this week, Roshan Panesar of Falcon Chambers analyses EE Ltd and Hutchison 3G UK Ltd v Clocktower Investments Ltd. The Upper Tribunal held, reluctantly and bound by authority, that operators could occupy incorporeal rights such as easements for 1954 Act purposes. That brought the tenancy within the Act and excluded reliance on the Electronic Communications Code.
But where only easements are occupied, the court cannot order a new tenancy of those rights alone: there is no sufficient ‘holding’.
The decision leaves operators potentially trapped between two regimes: protected enough to continue a tenancy, but not enough to renew it. The tribunal has certified the occupation issue for a possible leapfrog appeal, signalling that this awkward result may yet face Supreme Court scrutiny.
