The Electronic Communications Code: A Landowner's Guide to Telecommunications Agreements

"The Code" contains the legal framework that grants telecommunications companies a wide range of legal powers to install and maintain networks, such as mobile and broadband services, on both public and private properties.  The ECC is intended to facilitate the provision of enhanced mobile and broadband services to the public and to remove the barriers in previous procedures that caused expense and delays.  

The ECC grants Operators a wide range of powers, including access to the property, the installation and keeping of telecoms equipment on a property, and the right to upgrade and share the equipment with other providers.  It also seeks to cap rental value, with the valuation of a proposed site used by an Operator being based on the "no network assumption".  Simply put, the valuation attached to the proposed site disregards any value of that site for its intended use by the Operator.

Under the ECC, a Code Agreement can only be conferred by an Agreement between an Operator and the Occupier of the land.  Operators have been known to approach those in occupation.   However, case law has clarified that only those in occupation of the property (or who have control over it), and who have sufficient legal interest or authority to grant rights to enter into an agreement. 

This means that a tenant occupying property by way of a tenancy could, in theory, enter into a Code Agreement for the duration of their tenancy instead of the Landowner.  An Occupier with a grazing licence would not be able to grant such rights. 

It would be highly probable that an agreement to enter into a Code Agreement with an Operator by a Tenant would breach the terms of most standard farm tenancies. A Tenant should refer any approach to the Landowner in the first instance, notifying the Operator of their legal standing. 

Yes, however, it is unlikely to be the end of the matter unless there is a very good legal reason for you to refuse.  An Operator is able to apply to the Upper Tribunal (Lands Chamber) for it to impose a Code Agreement on the Landowner.  To be successful, the Operator must prove that the proposed installation of telecoms equipment is necessary to support or improve the communications network and that it serves the public interest.  

It must also demonstrate that the installation of telecoms equipment (and its ongoing presence) would not cause serious detriment to the Landowner that outweighs the benefit to the public that could not otherwise be compensated for.  The level of prejudice suffered by a Landowner must be very high to outweigh public interest.  

Simply not wanting any telecoms equipment on your property is not a valid reason for refusal.  Nor is the reasoning of it potentially lowering the value of your property, or the level of rent offered, the latter of which may be subject to negotiation in certain circumstances. 

If a Landowner intends to redevelop their property and cannot reasonably do so with the telecoms equipment installed, the Court may refuse to impose a Code Agreement.  A Landowner must have a genuine intention to carry out redevelopment; merely saying that it will happen at some point is not enough.  There must be a firm and settled intention and a reasonable prospect of being able to bring it.  Think planning permission, and the money to implement it with evidence of contractors being sought and or instructed.  

Other reasons could include that the imposition of a Code Agreement would cause serious interference with the existing use of the property, such interference must be significant. It is probable that the proposed location of the equipment would already take into account health and safety risks, accesses and the existing property use.  

If the imposition of an agreement would cause the Landowner/Occupier to be in breach of their existing obligations, the Court will be mindful of this.  As before, the breach would have to be significant, and it should be anticipated that the Operator may want to assist the Landowner in obtaining a resolution to this. 

Not easily.  A Landowner can serve a prescribed notice on an Operator giving no less than 18 months' notice to terminate the Code Agreement, and be after the date that the Agreement would have come to an end. 

It must also state one of the statutory grounds for termination, which would be: 

• A substantial breach of the Code Agreement
• Persistent delays in rental payment by the Operator
• The intention to redevelop all or part of the property
• The Operator is not entitled to a Code Agreement as the statutory test for an imposed agreement that does not and/or no longer applies.

• Operators have strong rights, so it is important not to ignore correspondence and/or notices received from them.  An Operator can apply to the Upper Tribunal (Land Chambers) even if you ignore them. 
• It is hard to have telecoms equipment removed from the property once it has been installed, unless the Operator serves notice to terminate the Code Agreement and removes the equipment. 
• Consider the long-term plans for your property.  If you would like to redevelop at some point, communicate this to the Operator to determine if the position can be decided with that in mind.  
• Rent payments are set by both legislative guidance and case law. It is unlikely to set your world on fire. However, it is reasonable that the Operator should pay your professional fees for entering into the Code Agreement.
• Speak to a professional land agent and lawyer specialising in telecoms if a telecoms company approaches you.