If you are a landowner, agreeing to locate telecommunications apparatus on unused land can be a quick and simple way of generating cash.
Unfortunately, obtaining removal of the apparatus, or even renewing an agreement when it has expired, can be difficult and costly. A key reason is that the law governing operators and their apparatus is rather a mess.
Operators have the benefit of rights in the Telecommunications Code. Some of the rights do not work well together and there are also serious issues with the interaction between the Code and other laws, particularly the Landlord and Tenant Act 1954.
The good news is that these issues are widely acknowledged by the government and organisations in the telecoms sector. As part of its commitment to roll out superfast broadband throughout the UK, the government is trying to resolve the problems.
Part of the process is the publication of the Law Commission's consultation paper on the Code. It runs to 136 pages and deals with some complex commercial and legal issues. So unless you are an organisation working within the telecoms sector, it is unlikely that you will read it. Fifty Shades of Grey it most certainly is not.
However, if you are a landowner with telecoms apparatus on your land then the proposals could impact on your rights. Landowners should be aware of the following key issues.
The Law Commission is reviewing the ability for landowners to obtain increases in rent in return for allowing operators:
- to upgrade apparatus on land
- to share apparatus with other telecoms operators
- to assign the occupational agreements to third party operators
The potential ability to require additional rent for assignments is particularly topical due to the O2 and Vodafone proposal to transfer all their existing sites into a new joint venture company between O2 and Vodafone, so allowing both operators to use the apparatus rights.
The consultation paper also takes a detailed look at the problematic area of how to calculate what operators should pay landowners to place their apparatus on land in the first place. This is particularly relevant to cable operators - less so for mobile phone operators. The issue is proving to be very contentious for the various interested parties and it remains to be seen whether common ground can be found.
Repairs to land
There are proposals to restrict a landowner's ability to require telecoms apparatus to be altered or relocated. This could have an adverse impact on a landowner's ability to carry out repairs to its land in the vicinity of apparatus. For example, it could cause difficulties if a landowner requires apparatus on a roof to be relocated to allow for repairs to the roof.
Removal of apparatus at the end of an agreement
It is proposed that landowners and operators should be allowed to disapply the security of tenure provisions in the Code. We are pleased to see this proposal as we have lobbied the government to include it as part of any review of the Code.
If the proposal is adopted, it would be particularly useful to those landowners who own multi tenanted buildings and give permission to cable operators to install cables through common parts of a building to reach tenants. Landowners could agree that such cables are not protected by the security of tenure provisions in the Code. This would remove concerns that future redevelopment of a building could be prevented due to the cables being protected by a right to remain in position.
It is also proposed that the security of tenure provisions in the Landlord and Tenant Act 1954 will be automatically excluded if a telecoms operator has the benefit of security of tenure under the Code. This is designed to avoid any problems caused by the co-existence of the two forms of security of tenure. It would remove the need to terminate the right to occupy under the 1954 Act first before attempting to terminate rights to occupy under the Code.
That said, it will be some time before parties can benefit from any of these proposed changes. The Law Commission's consultation period closes on 28 October 2012 and it should publish its report and recommendations during spring 2013. There is currently no proposed timescale by which the Government will review those recommendations.
If you would like to know more about the proposed changes or have any other queries relating to telecoms apparatus and the Code, please contact Andrew Farmery on 03700 86 8885.