Telecoms Update

On 28 December 2017 the rules concerning the rights of telecoms operators to place and maintain telecommunications apparatus on land changed, through the introduction of a new Electronic Communications Code.

The new rules give operators more flexibility to the detriment of landowners, with the Government taking the view that the public benefit in allowing telecoms operators to establish and maintain a good quality network, to a degree, outweighs the rights of individual land owners. For example, Telecoms operators have a right to obtain a court order permitting their apparatus to be placed on a piece of land, where the landowner does not give its consent and there are only limited grounds available to a landowner to object to such an application.

It can also be very difficult for a landowner to terminate an agreement with an operator, where the operator does not want it to end. Generally speaking, the operator will be entitled to at least 18 months’ notice and there are only limited grounds on which a landowner can terminate the agreement (e.g. substantial breaches of the code by the operator, or the landowner requires the land for redevelopment and could not reasonably do so unless the agreement is ended).

A recent case, one of the first to be reported on the new telecommunications code, gives an indication on how the Courts and Tribunal Service will approach disputes under the code, and be guided by its primary objective. In the case of Cornerstone Telecommunications Infrastructure Ltd – v – The University of London, an operator had had to remove equipment from a building that was to be demolished, and sought access to a replacement site owned by the university, with a view to testing its suitability. The university declined to grant the operator access, based on concerns over security issues. The operator applied to the tribunal seeking an order forcing the university to allow it access.

The tribunal, interpreting the Code widely, held that the access requested was something the operator was entitled to demand under the Code. In order to be granted access, the operator has to show (or at least prove there is a good arguable case) that any prejudice suffered by the university would not be adequately compensated by money and that the public benefit (having regard to the public interest in having a high quality network) outweighs the prejudice the university may suffer. The tribunal felt that these points had been made out and accordingly the operator was allowed access.

Luke Cain is a solicitor in the Property department at Barker Gotelee Solicitors in Suffolk.

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