How does the new Electronic Communications Code affect Landowners / Landlords?
— 1 Oct 2020 11:05:19 by Mark Deacon
In today’s world, and especially in the current climate, mobile phone connectivity is key. Whether for track and trace, the What3Words rescue app, local traffic and travel updates, Zoom video conferencing or just plain old voice calls, everyone expects instant access and an uninterrupted experience.
To meet this demand, mobile phone companies are rolling out 5G, including in Sussex. During the pandemic, we heard many conspiracy theories linking the virus to phone masts, with local communities fighting against them, but fortunately - or unfortunately depending upon your viewpoint - the Operators have the law on their side. In an effort to make their life easier, the Government introduced new rules in 2017 to give phone companies greater powers and to lower the rent they pay in return for improving network coverage.
The new Electronic Communications Code does not favour Landowners who have Operators as Tenants and there have been numerous legal disputes since it was introduced. The code is complex but essentially allows Operators to install, upgrade and share the use of telecoms equipment on privately owned land. At first it appeared to be one-sided in the Operators’ favour, but recently the tide looks as if it is turning to create a fairer middle ground with Landowners now being listened to.
The days of receiving high rents (typically £6k pa for Greenfield and anything from £10k to £30k pa for rooftops depending upon the location) are over. By the same token, the derisory offer of £500 pa under the new code is also disappearing. The valuation method of market value being replaced by a ‘no scheme’ approach resulted in these derisory offers. Courts are now obliged (due to ‘Open Market’) to factor in potential competition from Operators, which can result in higher considerations (rent). This was outlined in the recent Vodafone v Hanover Capital Ltd case. There are ongoing appeals with other cases now.
Negotiations are now very protracted, and in some cases contentious, unlike the previous 25 years or so where both sides generally agreed matters amicably without the need to go to court.
If you are a Landowner / Landlord, it is therefore imperative that you seek specialist advice from an experienced Chartered Surveyor who is au fait with telecoms and a solicitor who is experienced with telecom agreements.
In Brighton we have been approached by Landlords, especially in the North Laine area, to advise them. In turn, they have been approached by agents acting on behalf of the Operators and have received intimidating letters, demanding access to survey their buildings for telecoms sites. In the main, these have been for micro cells, which are essentially link sites in heavily pedestrianised retail areas. Micro cells hold and boost the connection and signal until you reach a larger macro mast. These masts can be the size of an alarm box and erected on the outside of a building; they go completely unnoticed by the public. However, rights of access still apply and they have the same legal and lease issues. Again, it is crucial to get the right advice, as it can adversely affect any tenants you have, especially if their leases are protected by the Landlord & Tenant Act 1954 part 2. The Operators will state that you cannot deny them access to survey and will claim they can use statutory powers. There is case law to support the landowner in EE Ltd v Cooper but you still have to tread very carefully.
Graves Son & Pilcher can advise and guide you through this minefield. Managing Partner and Head of Professional Services, Mark Deacon , spent over 15 years working firstly for the Operators, then latterly against them, acting solely for Landowners and Landlords.