‘Not in my back yard!’ – There may be no choice.

Commercial Property | 14th December 2017

Mobile phone usage has grown massively in the last two decades. There are six times as many phones in use as there were 20 years ago and staggeringly there are now more mobile phones in the UK than people.

Where there are mobile phones there also needs to be telecoms masts and equipment to support them. The Electronic Communications Code of 2003 (the ‘2003 Code’) gave rights to network providers (‘Operators’) to install and maintain equipment on land. This has led to a generation of leases over the last 10 plus years between landowners and Operators.

Briefly, the 2003 Code gives Operators two key sets of rights under the general regime: First, where there is a voluntary agreement between the Operator and the landowner (‘Occupier’) the Operator can enter onto the land carry out work and keep equipment on the land. Secondly, where the landowner will not consent, the Operator can apply to court for an order imposing agreement on the landowner. The court will only do this if the prejudice to the landowner can be adequately compensated for and also is outweighed by the benefit to those who will use the equipment.

Leases entered into with Operators also have the twin protection of both the 2003 Code and also the 1954 Landlord and Tenant Act which applies to business tenancies. The consequences of these protections are that once a landowner has entered into a lease with an Operator and let them onto their land, it may prove very difficult to get them off. Also under the 1954 Landlord and Tenant Act, a business lease does not need to be in writing.

Technology inevitably moves faster than legislation which constantly seeks to keep up.

The Digital Economy Act 2017 seeks to impose a new Electronics Communication Code (the ‘New Code’) but this has not yet come into force. The anticipated date for the New Code to come into force is some time in December 2017.

In relation to the New Code there are three things to flag up. First, the protection of the 1954 Act is removed; however the enhanced protection under the New Code is imposed. Secondly, with the New Code and its enhanced protection an occupier can only terminate a lease on no less than 18 months’ notice and must establish one of 4 statutory grounds. Under the 1954 Act only a minimum of 6 months’ notice and a wider set of statutory grounds were required. Also, the termination date under the 18 months’ notice can be no earlier than the earliest end date of the lease (which would be either right at the end of the lease term or at an agreed break date.) Thirdly, under the New Code an Operator can freely assign their lease to another Operator so this means a landowner would not necessarily know who is on their land and operating the telecoms mast.

The upshot of the pending New Code is that Operators will have even more power and protection than under the 2003 Code. That being said, even under the 2003 Code there was always the possibility that a court could simply impose an agreement on a landowner for their back yard be taken over by a telecoms site.

If a landowner is considering letting an Operator on site and entering into a lease with them, they should think very carefully before doing this as the Operator or whoever they assign the lease to may prove very difficult to remove from the site. Also the landowner should make sure they are adequately compensated not only in terms of the rent but also the payment of all their professional costs before entering into any such lease.

John Guthrie

Senior Solicitor, Commercial Property

John started his career at Hart Brown in 2016. He is a Commercial Property solicitor with 18 years post qualification experience in property. He i...