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Latest News

October 15
Telecoms mast agreements Explaining ‘the code’

Land owners can generate income from allowing mobile telephone operators to install equipment on their property in return for a fee. However, anyone presented with a network operator’s agreement should take independent advice from their land agent and solicitor before proceeding.

Various protections are afforded to telecoms providers under the Electronic Communications Code (“the Code”), which can erode the rights of the land owner to require removal or re-sitting of telecoms apparatus without seeking a court order. The impact of the presence of apparatus on the land needs to be considered in the event of re-development or change of use as there are no guarantees a court order to remove or re-site the apparatus will be granted and wording in any agreement to allow removal or re-siting of the apparatus can be challenged by the telecoms provider who would seek to fall back on its rights under the Code.

Care should be taken when approving any plan showing the extent of the land subject to the agreement, as the telecoms provider will seek to obtain control over land owned nearby as well as that required to site the apparatus. There are likely to be restrictions on further telecoms apparatus being installed and a requirement to cease any operations which interfere with the new apparatus. The route of any new electricity cabling to the site and for vehicular access for repair and maintenance should be agreed beforehand and identified on a plan to avoid unnecessary encroachment on adjoining land.

Any agreement (no matter how it is presented to the land owner) is likely to constitute a lease, which will afford the telecom’s provider additional rights of renewal on the same terms under the Landlord and Tenant Act 1954 unless a statutory procedure to exclude such rights is adhered to.

There is no obligation on the telecoms provider under the Code to pay the land owner’s cost, whether they are professional costs regarding entering into the agreement or costs associated with obtaining consents, enforcing a claim for breach or entering into any wayleave agreement during the operation period. The telecoms provider will try to impose these costs on the land owner unless there is written agreement to the contrary and such costs can far outweigh the value of the annual rental income.

Although there is no right to site share under the Code, the amalgamation and re-organisation of telecoms companies has resulted in telecoms providers bullishly trying to incorporate such rights into new and existing agreements without the land owner being entitled to any rental increase. It may be difficult to indentify when site sharing is taking place and problems can arise when seeking to enforce obligations under the agreement against a third party. If the land owner does not monitor closely where any rent payments originate from they could inadvertently consent to an assignment /subletting/ site sharing arrangement.

The operator should be under an obligation to maintain the apparatus and any surrounding boundary fence in a safe state of repair (so as to avoid injury to humans and livestock) throughout the term and also at its own cost to remove the apparatus and any ancillary cabling or infrastructure from the land and restore the site to its original condition at the end or earlier termination of the agreement. A schedule of condition may be desirable to provide evidence of the original condition, and should extend to any access land or adjacent land that may be affected by the telecom providers’ apparatus.

If the land owner refuses to enter into an agreement with the telecoms provider then it can seek to exercise powers of compulsory purchase to acquire the freehold interest in the land on which the apparatus is to be sited in exchange for compensating the land owner. In practice these powers seem to be rarely, if ever, used but there are no guarantees that the position will not change in future.

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  |  Commercial Property