Mobile telecoms companies’ use of land for masts and other equipment has long been regulated by special legislation: the Telecoms Code. A completely new Telecoms Code was introduced when the Digital Economy Act 2017 came into force in December of that year. The new regime, implemented by the UK government, includes some important changes intended to allow private telecoms companies greater and more economical access to land in order to expand the mobile network. These changes come at a cost to landowners, however.

Some of the most significant changes are highlighted below.

Creation of New Telecoms Code agreements

Like the old Telecoms Code, the new Code specifies that any agreement created under it must be in writing. The new Code goes further and requires that any agreement must also state the duration of the agreement and how much notice must be given before it can be terminated.

It is as yet unclear whether the absence of the new specified information in any lease would render the agreement unenforceable or whether default duration and notice periods would be implied, as is the case with other commercial leases.

Compulsory access rights

The old Telecoms Code allowed telecoms companies to go to court to gain the right to use land even without the landowner’s agreement, provided the statutory requirements were met. The new Telecoms Code changes those statutory requirements.

The test is now whether the court is satisfied that in granting such rights any prejudice to the landowner can be adequately compensated with money and is outweighed by the public benefit. Only if the landowner can show these tests aren’t met, or that he or she has genuine plans to develop the site, will compulsory access rights be refused.

Determining rent

As with the old Code, there are statutory provisions for deciding how much rent a landowner can demand from a telecoms company in the absence of agreement. The change is that the new Code specifies that the rent will be fixed according to its value for purposes other than telecoms and using an assumption (which will often be fictional) that the telecoms company has another, competing site available to it.

The effect of this change will be to reduce rent.

Site sharing

The old Telecoms Code contained no rights for telecoms operators automatically to share land with other telecoms companies: each company had either to negotiate its own deal with the landowner, or rely on the existing tenant gaining sub-letting rights. Under the new Code, telecoms companies will be able to share their sites without requiring any express permission from the landowner.

The landowner has certain limited protections against misuse of this right, but in practice the right is likely to be freely exercisable by telecoms operators.

Lease termination

One of the biggest changes in the new Code is to the process for termination of agreements and removing telecoms companies from the land.

This is a now a two stage process:

terminating the agreement by giving at least 18 months’ notice and then obtaining an order from the Tribunal;
obtaining another order allowing actual removal of the equipment, which can be done only where the statutory tests are met.

The process is complicated and it is recommended that professional advice is sought before entering into any agreement and again when termination and removal is desired.

Transfer of dispute resolution to the Tribunal system

Previously telecoms disputes in Scotland were dealt with by the Sheriff Courts. Regulations made under the 2017 Act mean that cases arising under the Telecoms Code must now be brought in the Lands Tribunal instead. The Tribunal system is, generally speaking, less formal though the lack of clear structure to the proceedings can introduce uncertainty.

To conclude, the new Telecoms Code is generally friendlier to the telecoms companies than the old regime and is likely to result in landowners receiving less rent than before.

Landowners are advised to seek advice before entering into agreements, particularly where the telecoms company insists on a standard “off the peg” lease that may not suit the individual site or landowner.