Telecoms mast agreements: a guide

Telecoms mast agreements

The installation of a telecoms mast on your property is now a considerably less appealing prospect than it once was. Before entering into negotiations on telecoms mast agreements, landowners need to be fully aware of their rights and the implications of having a mast in place.

Electronic Communications Code

The Digital Economy Act 2017 amended the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (ECC) to facilitate the rollout of 5G through easier deployment of infrastructure, such as phone masts, exchanges, and cabinets, on both public and private land.

The new code, which came into effect on 28 December 2017, is commonly referred to in the industry as “the 2017 Code”. It is contained in Schedule 3A of the Communications Act 2003, but it has been amended by the:

• Telecommunications Infrastructure (Leasehold Property) Act 2021; and
• Product Security and Telecommunications Infrastructure Act 2022.

Essentially, this combination of legislation serves as the primary source of regulation for fixed-line operators, mobile network operators, internet service providers, satellite network providers, and other similar providers and operators (“communication network providers”).

Access to your land

The background to all of this is that communication network providers are granted rights to access private (or public) land by Ofcom. If your land appears to be a potentially suitable site for communication equipment, operators will first require access to conduct a survey which assesses whether the site is appropriate for the installation and operation of electronic communications equipment.

Most visits last only a few hours, but you might choose to refuse access. Nevertheless, operators have the legal right to apply to the Upper Tribunal for an order granting access to your land. To oppose their application, you will need substantial evidence demonstrating:

• your plans for redeveloping the land; or
• that the prejudice to you outweighs the public benefit.

Landowners can be compelled to grant telecoms mast agreements

Following the MSV, if the operator considers your land suitable, they will propose terms of agreement for installing equipment for a given period, perhaps 10 years. If you cannot agree terms, the operator can initiate a process that may result in the Upper Tribunal imposing an agreement upon you.

What are the grounds for objecting to telecoms mast agreements?

As with the survey you can object to communication equipment agreements if you can provide substantial evidence:

• of your plans to redevelop the property, or
• if the prejudice to you outweighs the public benefit.

Unfortunately, landowners begin at a disadvantage, as the Tribunal’s initial premise is that having a variety of high-quality telecoms networks greatly benefits the public. It is hard to see many cases where the prejudice to a single landowner would outweigh the public benefit.

Redevelopment offers a significantly better chance of thwarting the operator’s plans, but you must present solid evidence of a firm intention to redevelop, for example, planning permission.

Alternative dispute resolution

The 2023 update to the ECC requires operators to consider alternative dispute resolution (ADR) before applying to the Tribunal over disagreements concerning new telecoms mast agreements or changes to existing ones. This measure aims to reduce legal costs and expedite resolutions.

Telecoms mast agreements interim orders

The 2023 update also introduces a mechanism that allows either party to request interim orders to alter financial terms or amend existing telecoms mast agreements pending a final decision. This change applies to both current and expired agreements, aiming to streamline negotiations and make them more efficient and cost-effective.

Agreement terms are always more favourable to the operator

While the Tribunal always aims to uphold a fair balance between the parties, certain provisions are guaranteed by the 2017 Code. For example, operators can, without the consent of or payment to the landowner:

• share their equipment with other operators;
• upgrade their equipment or
• assign the agreement to another operator.

Although the Tribunal has broad discretion over terms, it always exercises that discretion with the statutory purpose in mind, i.e., making infrastructure deployment and maintenance easier and more cost-effective.

Rent is always favourable to the operator

A key aspect of telecoms mast agreements is the valuation of rent. The 2023 update to the 2017 Code has significantly altered the calculation to favour operators. The new valuation approach is based on hypothetical assumptions that do not prioritise the land’s strategic value, resulting in a lower rent. For instance, in the notable case of Cornerstone Telecommunications Infrastructure Limited v London and Quadrant Housing Trust (2020), the Tribunal ordered an annual rent of just £5,000 for a mast on the roof of a London tower block.

Landlords should be aware of how the valuation framework is geared towards the operators and should always seek the assistance of a surveyor or valuer experienced in this type of valuation and the 2017 Code so that they have realistic expectations of the level of rent that can be expected.

Removing the equipment from your land

Once in situ, the communications equipment benefits from statutory protection, and a court order is required for its removal. Although telecoms mast agreements are granted for a fixed term, they do not automatically terminate at the end of that period. Instead, they continue on the same terms until either party serves a notice requesting a new agreement or termination.

Should you wish to terminate the agreement, you must serve an 18-month notice specifying one or more statutory grounds. There are several grounds, but the most likely to succeed is where redevelopment is planned. However, if the operator serves a counter-notice, the agreement can only be terminated if the Tribunal agrees that the ground is established.

On termination, you cannot enforce the immediate removal of the equipment. That requires serving a further notice seeking removal. If terms for removal cannot be agreed within 28 days, you must apply to the Tribunal for a removal order.

Practical steps

Having a complete understanding of what a mast means for your property is crucial. Although the initial survey may seem straightforward, the subsequent legal and procedural steps require very careful attention. Here are a few points to keep in mind:

• Stay informed. Understanding the statutory framework and your legal rights helps you to navigate the process more effectively.
• Always consider the long-term impact. It is always worth weighing immediate inconvenience against the potential longer-term benefits or disadvantages of having communications equipment on your land.
• Always take legal advice. Achieving the best possible outcome from what can appear to be a very challenging situation depends on taking specialist advice at the earliest possible opportunity. Call us on 01225 755656.