Electronic Communications Wars

By Michael Talbot

Partner

Professional property owners have until now been quite happy to enter into agreements with telecom operators to allow them to install equipment on their premises.

The income generated from the agreements was relatively generous and it was fairly easy to make the equipment, preventing the existence of the agreements from hindering potential development.

All that has changed since the Electronic Communications Code (ECC) came into force in December 2017, replacing the previous Telecommunications Code. In the 33-year existence of the Telecommunications Code, legal cases over disputes between landowners and telecom operators were rare; in the year and a half since the new code came into effect, rarely a week goes by without a report of a new case. One commentator has called it a war!

The main effect of the new code has been to reduce the availability of sites for telecom equipment. This is for two reasons:

  • The basis of calculating any rental fee has been changed, reducing the amount that can be charged
  • The procedure for requiring removal of equipment once the fixed agreement has come to an end is now made onerous and can mean it takes a long time to get vacant possession.

However, it is not all doom and gloom for landowners and developers.

If equipment has to be relocated, this is now done at the operator’s cost. Under the old Telecommunications Code and the new Roads and Street Works code it would be the landowner and developer who picked up the tab.

Also, if an operator wants to try and have equipment installed against a landowner’s wishes, the new code says this cannot be done if the landowner or other relevant person intends to redevelop all or part of the property, or any neighbouring land, and could not reasonably do so if the equipment was installed.

One cause of disagreement will be how a landowner demonstrates that intention. Obviously, if the landowner has planning permission or has started planning the development and has a good chance of obtaining planning permission it is one thing – a vague possibility is another.

Lastly, all disputes relating to the new code are dealt with by the Upper Tribunal (Lands Chamber) rather than the courts. This has made the process much easier and faster.