Mobile phone operators are protected by legislation known as the Electronic Communications Code.
The Code has been in force in one form or another for many years, but was updated in 2017 to enable the 5G rollout.
The Code was designed to be beneficial to telecoms companies and these are the main aspects of it.
If you need assistance in relation to a telecoms agreement - whether granting a new agreement, interpreting an existing one, or seeking to remove telecoms apparatus from your land – please get in touch.
Operators can get onto your land to have a look around
If a telecoms operator has identified your land as somewhere to put a mobile phone mast, it will want to carry out what is known as a multi-skilled visit or MSV.
This is a site survey at which engineers will check whether the land is a suitable place for the mast.
The visit will probably only take a few hours so it is probably not objectionable in itself but it is the start of a process that could result in a mandatory agreement being imposed on you, so some landowners might wish to refuse access to their land.
But that is unlikely to be possible because the operator has the right to apply to the Upper Tribunal for an order requiring you to give access.
The tribunal will grant the order unless you can show convincing reasons why the prejudice to you outweighs the public benefit in the installation of the mast or if you are planning a redevelopment of the land.
In most cases, those are both difficult things to prove.
The court can compel you to grant an agreement to the operator
Once the MSV has taken place, if the land is suitable, the operator will suggest terms for an agreement allowing it to install the equipment on your land, and to keep it there for a period of time – perhaps 10 years.
If terms cannot be agreed, the operator can start a process which could ultimately end in the Upper Tribunal ordering you to grant the agreement.
Just like the MSV, you can only oppose that agreement (broadly speaking) if you are planning to redevelop the property or if the prejudice to you outweighs the public benefit.
The starting point for the tribunal is that there is a significant public benefit derived from having a choice of high quality mobile phone networks.
So you are on the back foot to begin with. It is hard to think of many situations where the prejudice to a single landowner could trump the public benefit. Some circumstances will exist, but the cards are very much stacked in the operator’s favour.
The terms of the agreement will be favourable to the operator in some respects
In setting the terms of the agreement, the tribunal will try to strike a fair balance between the parties. But there are some provisions that the Code guarantees.
For example, operators can assign the agreement to other Code operators without requiring the landowner’s consent.
Subject to some limited exceptions, they can also share their mast with other operators, and upgrade their equipment, without consent and without payment.
The rent will be favourable to the operator
Long gone are the days when a rooftop or the corner of a field could be let to a mast operator for tens of thousands of pounds.
The new Code requires valuation of the rent to be on various fictitious assumptions including that the agreement doesn’t relate to the provision of a communications network.
If your land is the only land where the mast could be situated, that fact is ignored.
The effect of these assumptions is that the rents being ordered by the tribunal are considerably lower than they were before the new Code came into force in December 2017.
In Cornerstone v London and Quadrant for example, the tribunal ordered a rent of £5,000 pa for a mast on the roof of a London block of flats.
You need to apply to court before the equipment can be removed
Once an agreement has been entered into – whether voluntarily or after a tribunal decision – the equipment enjoys strong statutory protection.
Assuming the agreement was granted for a fixed term like 5 or 10 years, it won’t end automatically at that time. Instead it will continue on the same terms until one or other party serves a notice either requesting a new agreement or seeking termination.
A landowner wishing to terminate the agreement must serve an 18-month notice setting out one or more of the statutory grounds. There are several grounds but the one that is most likely to be used – or most likely to be successful – is where a redevelopment is planned.
Assuming the operator serves the relevant counter-notice, the agreement can only be terminated if the tribunal agrees that the ground is made out.
Once the agreement has been terminated, landowners cannot enforce the removal of the equipment immediately. A further notice must be served seeking removal. If terms of removal cannot be agreed within 28 days, the landowner must apply back to the tribunal for a removal order.
Letting a telecoms operator install a mast on your land is a much less attractive proposition than it used to be. See our video here.
Things have, in theory, got much better for operators. But landowners are now so wary of operators that they are not giving operators an easy ride. Operators are fighting complicated and expensive battles all across the country, so perhaps there are no clear winners.
That is in part why the Government recently ran a consultation to look into changing the Code. Watch this space for further updates when the outcome of that consultation is known.