Telecoms operators have enhanced rights to install, operate and maintain equipment on both public and private land as a result of changes introduced in 2017 under the Electronic Communications Code (‘the New Code’).
The New Code regulates the relationship between landowners and operators, and grants operators’ statutory rights to install, operate and maintain electronic communications apparatus, including telephone masts, on public and private land. It applies to all agreements entered into between an operator and a landowner since 28 December 2017, but will also apply to many agreements that were already in existence prior to this date under transitional provisions.
One issue cleared up by the New Code is the means by which existing agreements are brought to an end. Prior to the introduction of the New Code, there was tension between the existing code and the Landlord and Tenant Act 1954. Under the New Code, there is one regime and an operator cannot enjoy protection under both the New Code and the Landlord & Tenant Act 1954 (“the 1954 Act”).
Whether a lease is a Code agreement or a business tenancy for the purposes of the 1954 Act depends, broadly speaking, on whether the primary purpose of a lease was to grant Code rights and when the lease was granted.
If the lease is a Code agreement, then a landowner must give not less than 18 months’ notice and specify the ground of termination. Such grounds can include substantial breaches of an operator’s obligations under the agreement, or more commonly, the desire to redevelop the land. Termination under the 1954 Act also requires a landowner to state a ground of opposition, but the notice period can be between 6 and 12 months.
Irrespective of how the agreement is brought to an end (i.e. whether pursuant to the New Code or the 1954 Act), the telecom operator has the ability to leave their communications apparatus on that site. A landowner must serve a further notice on the operator requiring the removal of the apparatus within a reasonable time.
The landowner and operator have a period of 28 days beginning on the day the notice was given to reach agreement on certain key terms regarding the removal of the apparatus. If no agreement is reached, the landowner or occupier can apply to court for an order requiring removal of the apparatus or authority to sell the apparatus.
For those working in conjunction with developers, this will mean planning ahead and starting the termination process early before construction begins on the site. As noted above, if the agreement is a Code agreement, the initial notice period is at least 18 months and there is still the risk that the operator will challenge the notice.
As such, by identifying whether telecom apparatus needs relocating and/or addressing this early on in the project planning phase, developers can ensure that construction plans are not delayed or worse.