The effect of the Telecommunications Code on landowners’ rights
Recent advances in mobile telephone technology have led to a proliferation of masts across the countryside and urban areas. The rents paid by mobile telephone operators for these sites are sufficiently attractive to tempt many landowners to consider agreeing to have a mast, plus the accompanying equipment, on their land.
However, some landowners have found that agreeing to have the equipment on their land for a set period of, say, 10 years, is the easy bit - trying to remove the operator’s masts at the end of the agreed term can be a different matter. Most landowners would reasonably assume that they would be able to recover possession of the land and, in order to prevent the operator from acquiring security of tenure under the Landlord and Tenant Act 1954, will enter into a lease with the operator which excludes the security of tenure provisions. Unfortunately this is no guarantee that the landowner will be able to have the equipment removed on expiry of the lease.
The Telecommunications Act 1984 (as amended) (“the Act”) exists to protect mobile telephone operators, the rationale behind this being that no one should be unreasonably denied access to a telecommunications system. Within the Act lies the Telecommunications Code which governs telecommunications agreements and sets out a procedure for the removal of the equipment. If a landowner wants an operator to remove equipment from his property, he must serve a notice in accordance with the provisions of the Code. If the operator then serves a counter-notice within 28 days objecting, the only way the landowner can have it removed is by obtaining a Court Order. And Court Orders are not granted lightly, the Court will focus on the principle that no one should be unreasonably denied access to a telecommunications system.
The landowner can only have the equipment removed if the land is needed for development or change of use and providing that its removal will not substantially interfere with the ability of the operator to provide a service. Otherwise, providing the landowner receives sufficient financial compensation, there is very little he can do to get rid of the equipment.
To date there has been no case law relating to a situation where an operator has served a counter-notice and the landowner has applied to the Court for an order for the removal of telecommunications equipment. This is probably because either existing agreements between landowners and operators have not yet expired; or where agreements have come to an end and landowners have requested the removal of equipment, there has always been a suitable alternative site for the equipment and the operators have taken the commercial decision to move there rather than serve a counter-notice on the current landowner.
Although landowners may think twice about entering into agreements with operators for fear of having equipment on their land for evermore, most take the view that the substantial fees are worth the risk. Others are of the view that any risk is slight because if operators began to invoke their powers under the Code, it would alienate the very people they need in order to carry on their business effectively.
For more information, contact Jennie Cuthill or Mark Miller
