Lease of land for Mobile Phone Masts – the Code
Do you need help leasing your land for Telecommunications?
Some key changes have been introduced by the new Electronic Communications Code.
Should an operator approach you seeking consent to construct a phone mast, tower or compound etc. this is what you need to know:
What is the Code?
The Digital Economy Act became law in April 2017. Following this The new Electronic Communications Code (Schedule 3 A of the Communications Act 2003) became legally effective on 28th December 2017.
Otherwise known as “The Code”, this has changed the way operators can deal with landowners when entering into a new lease or re-organising or terminating an existing lease for the purposes of erecting a telecommunication mast.
Existing Agreements are Unaffected:
Prior to 28 December 2017 any existing agreements in place do not fall within the Code, they remain under the terms of the existing agreement.
The Code will apply if the existing lease is renegotiated or terminated so seek legal advice before entering into negotiations for a new lease.
Changes to Value
Under the old rules valuations for calculating rent were based on the value of the infrastructure according to its worth to the operator. This resulted in “hot spots” which attracted higher rental agreements than those located in more remote areas.
Under the Code the principle is that the value is what the land is worth to the landowner eg. agricultural value and is not based on the value to the operator. This could reduce rental value in hotspot areas but gives landowners a better deal in more remote areas.
Shift in Powers
The Code falls outside of the 1954 Landlord and Tenant Act which means operators now have more rights. This will likely simplify negotiations.
No Landowner Consent Required for Upgrades and Site Sharing
The Code state that where equipment is being upgraded or shared, landowner consent is not required unless this imposes either an additional burden or an adverse visual impact. The operator can also share the site without charge.
However, there are restrictions on the number of operators who may share a mast. Seek advice if you believe you may be adversely affected by upgrades or sharing.
Termination
Notice may be served due to reasons such as for re-development of the site or operator breach of contract. The Landowner must give at least 18 months-notice to the operator until the date when the agreement has ended.
The operator then only retains security if a counter notice is served within 3 months and the matter is then referred to the court within 3 months after that counter notice.
A new agreement may be negotiated however failing this the court is to determine the issue. This can be costly for both sides and good advice should be sought to ensure a robust case is presented.
The same procedure applies to removal of apparatus.
Capitalisation of Existing Rental
If you have an existing mast and would like to capitalise the rental income then please get in touch as we can facilitate agreeing a lump sum capital payment with a third party management operator should this be of interest to you.
Agreements under the Code
In order to be considered an agreement within the Code the following features must apply.
The agreement must:
• be predominantly made in order to grant Code rights
• be in writing
• be signed by parties
• state the period granted
• state the period if any required for notice for termination
If it does not fulfil these tests it is not a Code agreement and has no protection under the Code.
Seeking Advice
If you are approached by an operator on a new greenfield site we at Miller & Miller are able to assist you with the process to ensure that you reach the best deal with the operator.
Please contact David Miller on Tel No. 0114 237 0120 should you have any queries or wish to discuss a situation you may have, in confidence and without any obligation.
