The 2017 Electronic Communications Code has changed the rules governing the relationship between landowners and Telecoms Operators.
The rights of Operators over land are conferred by what are termed by the Code as “Code Agreements”. These agreements carry with them a significant degree of statutory protection so that it is sometimes difficult if not impossible for landowners to terminate them.
Landowners need to be aware that Code Agreements can be imposed by the Tribunal against their will and for a very modest payment.
The ease and speed of using the Tribunal has been a factor in producing a number of Tribunal decisions over the past few months which in the main have been very favourable to Operators. Landowners are finding themselves burdened with obligations which affect the use of their land or properties.
Code Rights include the right to install telecommunications apparatus on, under or over the land and to keep it there; the right to inspect maintain, upgrade, to carry out works in connection with installations and to connect to power supplies etc.
When faced with an application the Tribunal has to consider whether two conditions are met before it can impose Code Rights which are:
- That the “prejudice caused to the relevant person by the order is capable of being adequately compensated in money”;
- “that the public benefit likely to result from the making of an order outweighs the prejudice to the relevant person” having regard to “the public interest in access to a choice of high quality electronic communications services”.
As the Government is paying increasing attention to the digital infrastructure with the roll out of 5G and the intention to improve access in all parts of the country, the second test above is likely to make it very difficult for landowners to successfully oppose applications.
We often act for clients who wish to regain possession of their properties from Operators in order to redevelop. The Code recognises this requirement and precludes the Tribunal from making an Order imposing Code Rights if the landowner can prove a genuine intention to redevelop and cannot reasonably do so if an Order was made in favour of the Operator. Although recent cases have made it clearer how the Tribunal interprets the Code in this context, resisting an Order being made on the basis the landowner wishes to redevelop is not straightforward and it is essential that landowners obtain expert advice at a very early stage in their development plans.
If you would like to seek further legal advice in this specialist area, please contact Alan Dixon, Managing Partner on +44(0)20 7549 7895 or email a.dixon@dklm.co.uk or Michael Adamson, Head of Property Litigation on +44(0)20 7549 7872 or email: m.adamson@dklm.co.uk.