The Electronic Communications Code came into force on 28 December 2017, giving telecommunications operators statutory rights to install and operate electronic communications apparatus on, under or over land. It came about as a result of consolidation in the mobile phone networks and the increased demand by the operators to share the existing infrastructure.
One year on, we have seen network operators wanting to use new agreements incorporating their new code powers on various mobile phone sites.
Under the old code the agreements had restricted the operators from adding additional equipment to the masts without paying additional fees.
The new code gives operators sweeping new powers to upgrade equipment and provides different procedures for requiring removal of equipment, depending on which party is seeking the removal and in what circumstances. In effect, the new code makes it easier for network operators to renew, add and upgrade apparatus such as masts, exchanges and cabinets on public as well as private land.
If agreement cannot be reached contractually between the parties, the new code allows operators to go to court to force a landowner to enter into a code agreement. In a recent case, EE Limited v London Borough of Islington (2019), the tribunal imposed a 10-year lease on a landowner, noted it was in the public interest to avoid a breakdown in mobile phone network coverage and therefore allowed operators to secure rights to move their equipment to a new site. The tribunal decided that a financial sum would adequately compensate the property owner despite them being “deprived of the right to do as they wish with their own property”.
It is clear that whilst we at Willans have been dealing with a number of code agreements for landowners, there are a large number who simply sign up with the telecommunications operator without taking advice from a lawyer or a surveyor.
As operators continue to build upon recent tribunal cases and to enforce their new powers, it is increasingly imperative for landowners to obtain professional representation from surveyors in respect of the rents payable and from solicitors in respect of the agreement documenting the siting of equipment, to ensure that the landowners’ interests are represented properly. In many cases, the network operator will pay the landowners’ professional fees or at least contribute to them.