Telecoms Masts – A New Code

We all moan if we cannot obtain network coverage for our phone or device. As devices move on the need for greater coverage and power grows. The network providers have been active in obtaining more sites and the Government is keen to support them and lower costs.

The Digital Economy Act 2017 provided a new Telecoms Code to support the network providers, whilst not unbalancing the market for landowners. It will be interesting to see the results but it looks likely it will be the network providers who will benefit and the landowners who may lose out as a result.

The new Code is not yet in force though we are told it will be soon; the end of this year or early 2018.

At the moment Telecoms masts, the related power supply, equipment and access are usually dealt with by a lease for a period. The draft will be produced by the network providers. Those mast leases can be the subject of business leases with renewal rights under the Landlord and Tenant Act 1954 (L&T Act) but also “Code Rights” for the Telecoms companies to retain the equipment if a Court Order is obtained. At first the Network providers did not use these “Code Powers” but they do now, particularly as leverage in negotiations.

Here are some examples of changes the new Code will bring in. It is clearer on the right of the landowner to ensure removal of the equipment when the agreement ends. A court order may now be available for the removal of equipment if it would prevent development. The new leases after the code comes into force will give the network providers stronger powers and rights which in general cannot be contracted out of; for example to assign a lease; to retain equipment ; to share use of the mast without additional payment. In general it will not be possible to contract out of the Code. The network companies will even be able to seek a court order for a new mast. Only the Code will apply to equipment leases not the L&T Act.

The market rental assessment under the new code is to ignore the network and if this is the only available site. The network companies argue this means they are just renting the site and its market value to them is not a consideration in assessing the rental, even though the rental is to be a market one. Landowners’ Agents argue this was not intended and if the market rental is sustained, these changes should not make a big difference to rentals. It will be of greater concern to landowners who have equipment on their land if the network providers think the new code is a recipe for “lower rents all round”. We do not yet know the effect on rents of the Code changes.

It is interesting that in some areas governments extol the benefits of market forces whilst at the same time distorting them by reducing competition in the interests of providing a cheaper result for consumers. Will the Competition and Markets Authority be called on to look at what the Government have introduced here? Perhaps, but do not expect any changes for the benefit of landowners at the expense of the now all powerful network providers, and you, of course, as a mobile phone user.

There is much more to the new Code but too little room here to outline all the changes.

Written by Robert Sainsbury – Bates Wells & Braithwaite – 01787 880440

Robert Sainsbury

Robert is the firm’s agricultural and commercial property lawyer. He joined Bates Wells & Braithwaite in 2003 having worked in East Anglia since qualifying as a solicitor in 1984.

Robert has many years’ experience of agricultural and commercial property work both freehold sales and purchases and the grant and taking of leases, options, promotional and overage agreements. He has given the Cambridge Law Society’s Agricultural Law up-date seminar in recent years.

In his spare time Robert spends a lot of time with his family, enjoys badminton and tennis and plays an active role within St Mary’s Church Bury St Edmunds.

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