Whereas under the 32 years of the previous code, some 52,000 radio masts were rolled out across the UK with only seven reported cases of the use of compulsory powers, this has totally changed following the introduction of the Electronic Communications Code 2017 (“the Code”).
This is important to landowners such as farmers as typically, they own or control the land on which telecom providers wish to site their masts. The Westminster Government is keen to facilitate the process to modernise the UK economy, ensuring more remote areas aren’t left behind in the mobile and wireless revolution.
In the three years following the introduction of the new Code there have been over 900 applications to settle siting disputes in England and Wales and some 80 in Scotland to the tribunal. Contrary to the expectations of Government during the introduction of this legislation, operators have shown a propensity to litigate under the Code rather than negotiate.
Despite the requirement that the legal tribunals award terms that protect landowners, operators are not really prepared to consider representations made by landowners on key contractual terms, often leaving them unable to safely access their own roofspace. Rather than increase the rentals they offer, some telecom companies use other inducements to obtain a consensual agreement; such as premiums of up to £15,000, considering these as ‘commercial payments’ rather than part of an agreed package.
In respect of lease renewals, operators, notwithstanding the provisions of the Code, ignore the terms of their existing agreement, and seek new agreements heavily weighted in their favour. Despite established case law, they make little attempt to justify their position and it is only if the matter goes before a tribunal that they seek justify the changes demanded.
Recent cases have highlighted the anticompetitive nature of agreements reached between operators and we have seen instances where landowners who have offered to build out sites themselves rather than accept the terms and payments offered facing Code applications.
- Any readers who are unsure how to negotiate with telecom operators on siting issues are welcome to get in touch.