What do landowners need to know?
The old Electronic Communications Code was replaced on 28 December 2017. The intention was to simplify the planning procedures for network operators to install and maintain apparatus such as phone masts, exchanges and cabinets on public and private land. Landowners are now facing various practical challenges and are finding that the new code benefits the operator rather than the landowner.
The new code was designed to make it easier for operators to roll out or upgrade their services, such as the current focus on the rollout of 5G. Operators can now apply to Ofcom to obtain certain rights, allowing them to execute works for which they would have previously needed landlord’s prior consent. As a result, landowners have reported a noticeable loss of control over building works, poorer security, reduced access and difficulty in removing the operators from their property.
If you are a landowner with a telecommunications agreement in place or are thinking about entering into a telecommunications agreement, there are several things to consider:-
Assignment - operators can now automatically assign their code rights to another operator without the need to obtain a landowner’s consent or provide payment.
Upgrading and Sharing - operators can upgrade or share their apparatus without the landowner’s consent and without having to pay additional rent.
Security of Tenure – under the old code, operators were able to rely on protection under the Landlord and Tenant Act 1954, meaning that the operator had a right to keep its apparatus on the land at the end of the agreement and the right to a new agreement. However, under the new code, the security of tenure provisions under the Landlord and Tenant Act 1954 have been excluded and the new procedures regarding termination should be followed.
Termination – landowners must now give at least 18 months’ notice to an operator in order to terminate an agreement.
There are now four statutory grounds for termination:-
- substantial breaches by the operator of its obligations
- persistent delays by the operator in making payment;
- landowner’s intention to redevelop all or part of the land or any neighbouring land;
- the test under paragraph 21 of the code has not been met by the operator, whereby, the operator must meet the two following conditions:-
- that the prejudice caused to the landowner can be adequately compensated by money;
- that the public benefit that is likely to be derived from the making of the order outweighs the prejudice to the landowner, bearing in mind the public interest in access to a choice of high quality electronic communications services.
In a leading case, landowners tried to bypass the grounds for termination under the new code. They claimed that they had an intention to redevelop the land by replacing operators’ existing masts with masts of their own. At the First Tier Tribunal, they were asked: ‘Would the landowner intend to carry out its redevelopment project if the operator was not seeking code rights?’
The tribunal decided that even though there was a reasonable prospect of bringing about the redevelopment proposal, the intention to bring it about was not genuine and the project was simply devised in order to prevent rights from being imposed by the operators. An intention of the landowner to redevelop must be something that is ‘firm and settled’.
Tees are here to help
Chat to the Author, Jane Winfield
Partner, Commercial Property, Brentwood officeMeet Jane
- Areas of expertise
Tees have managed our legal affairs over many years in connection with the old Wortley Byers office which was owned by the family. They advised us when we needed to set up a new lease for a new tenant after the expiry of the previous 25 year lease, and most recently, advised us on the successful sale of the property to our existing tenant. This last was not without its challenges, but Jane Winfield and her colleagues steered us to completion on the desired date.
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"Jane Winfield has been very helpful, providing guidance with options and recommendations in a timely manner."
Thank you for all your help I’ve been very pleased with all the service that you have supplied and I would not hesitate to recommend you and your company to anyone else. As I have already. Thank you again Jane.
We have used Tees Since last year they have been very professional and competent in all the work they have undertaken for us of selling a commercial property I would definitely use them again and thank them for all the hard work that was involved.
"I have used Tees Law for the last three years in relation to the lease of my business. Jane Winfield took on the task of securing our most recent one. Jane was so efficient, hard working and responsive during the discussions and made it a seamless process. Thank you, Jane. I highly recommend Tees Law"
Lynda Simms, Robert Kukla Spedition UK Limited
We contracted Jane Winfield of Tees Law to assist with the legal paperwork necessary for our new office lease contract. Jane has been both diligent and knowledgeable, always working with the best interests of our business in mind. First class service always and I wouldn’t hesitate to recommend Jane or Tees Law.
Legal 500 UK 2021
"The service levels provided by Jane Winfield in particular are impressive."
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"Jane Winfield was particularly very knowledgeable and helpful in her handling of the matter in hand. She was able to explain every action and procedure and its effects."
Legal 500 UK 2021
"Jane Winfield was outstanding in what was a complicated situation and worked tirelessly to see the job through. Jane made everything very clear from day one and we knew we were in good hands."
At this point I would like to say to Jane Winfield thank you so much for your support and hard work all throughout In this process. We loved the way you have showed your expertise and knowledge and has made us very comfortable.
We will of course be using your services from now on. You have indeed provided an excellent quality service and we look forward to working with you and Tees Law for many years to come.
We approached you after 6 months of difficulties with our old solicitors and we were directed to Jane Winfield who has been tremendous from the offset. She made instant progress, kept us informed on a daily basis, exceeding expectations. The service was excellent and efficient.
Many thanks again for speed of transaction on acquisition of the lease!! Made all the difference. Can’t tell you how much we both appreciated that.
John and Barbara Gilmurray
We are very grateful to you for your patience and sound professional advice during the drawn-out assignment process and have no doubt that we will need your services again in the future. We were so fortunate to have Jane Winfield’s help.