If the pandemic has taught us anything, it is the critical role played by mobile and broadband technology. Swathes of the country, confined to their kitchen tables or, for the lucky ones, their home offices, have relied heavily on the ability to work remotely while offices have remained shut.
Therefore, it comes as no surprise that the importance of extending and upgrading the mobile network has taken on a greater degree of urgency than ever before as has the need, in the government’s view, to address some of the flaws in the Electronics Communications Code (the Code) via a consultation which ran from January to March this year.
The consultation addressed issues that have arisen around the number of agreements being struck between landowners and mobile operators, which appear to have fallen to a record low. Landowners have viewed the statutory powers conferred by the Code – introduced in 2017 and which had been designed “to strike the right balance between all parties involved” - as one-sided, not least the rights of operators to install, maintain and operate their equipment, and the basis on which landowners would be remunerated for hosting such an installation on their land. This perceived unfairness has been strengthened by the outcome of several cases that have come before the Upper Tribunal that have been decided in favour of the operator. This has resulted in landowners pushing back over agreements for new sites, upgrading and sharing of existing sites and the renewal of expired, or expiring, agreements.
However, the one aspect that most landowners would like revisited, namely the price the operators will pay for renting the land on which their equipment sits, is not part of the consultation. The ‘No scheme valuation’ approach, whereby the land is valued based on its value to the landowner rather than the operator with the net result of considerably reduced rental income, makes the hosting of a telecoms site for some an unattractive proposition.
Although the consultation is designed to smooth the way for operators to be able to proceed with, and renew, agreements more quickly, landowners can take some comfort from a handful of court cases in 2020 that were decided in the landowners’ interest. In one case, a claim to renew an agreement (originally created under the old Code) under the new Code was directed to the county court which determined that the agreement should be renewed under the Landlord & Tenant Act 1954. Naturally, the consequences for the landowner were favourable in that the resulting rent was negotiated at ‘open market’ values rather than a ‘no-scheme’ valuation. In another case, the court decided that, as the site in question was likely to be subject to a bidding war between competing operators, this should be reflected in the landowner’s compensation which resulted in a rental increase of over 100%. Finally, a case in London between a lessee that had agreed a sale and leaseback arrangement with a developer was not obliged to renew its agreement with a mobile operator as to do so would prejudice its ability to exercise its break clause.
These cases demonstrate the necessity of seeking specialist legal advice when it comes to negotiating agreements with mobile operators. They are undoubtedly in the driving seat and the outcome of the consultation is likely to make that seat even more secure. However, it is encouraging that courts are judging each case on its specific facts. Although they can impose Code rights on a landowner if they judge the financial compensation to be adequate and / or if the public benefit outweighs the prejudice to the landowner, it is encouraging that the courts are exercising discretion when determining the outcome. This will become even more important if the proposals contained in the consultation relating to greater involvement by the courts in disputes between landowners and mobile operators make it into the White Paper. Nonetheless, there is a silver lining to all of this: better mobile technology will be of direct benefit to farmers who are increasingly reliant on technology to access the necessary data to make decisions about the operating of their farm.