A problem for developers?

This may prove to have a knock on effect for those wishing to remove masts from potential development land. This is because telecoms operators have statutory protection in the form of the Telecommunications Code which gives them greater rights to remain than other commercial tenants. In the past developers may have found it easy to remove masts and clear the site as these code powers have not been widely used and it has been possible to remove masts through straightforward negotiation. However, as less and less sites become available (perhaps due to health concerns) it seems likely that more operators will be seeking to use this protection to maintain their existing sites.

A rental opportunity?

If you are unconcerned about the possible health risks then leasing space to a telecoms company for a mast or other equipment can, of course, be a good way to make some cash from an otherwise unusable piece of land or roof space. Although rents for masts have been historically quite low it has been reported that this is changing possibly again due to the decrease in availability of suitable sites. However, property owners must weigh up the benefit of the rental income against the risk that they may be unable to remove the mast at the end of the term.

Those thinking of entering into a telecoms lease must ensure that they take advice with regard to the agreement. Often the telecoms company will provide a simple licence but any written agreement will give the operator the protection of the code. Although it is possible that careful drafting could mean that the code is excluded, this has not yet been tested in the courts. Furthermore, prospective landlords should be aware that even a very short and simple agreement could be regarded as a lease and as such will have the protection of the Landlord and Tenant Act 1954. It is of course possible to ‘contract out’ of the Landlord and Tenant Act security of tenure provisions but if this is not done the telecoms company will effectively have double protection. To remove the mast the landlord will have to follow the two separate procedures set out in the two Acts and, if the operator objects to removal, the landlord will have to make two separate applications to court.

Removal prior to the end of the lease term

Although the prospect of a good rent for an otherwise unused site may seem attractive, the presence of the mast may cause a problem when you come to redevelop the property. It may be the case that the lease term expiry is many years away and there are no landlord break clauses. It would seem, at first glance that unless removal can be agreed through negotiation there is no way to remove the mast.

However, here the Code does offer some protection for landowners. A notice can be served requiring removal of the equipment prior to the expiry of the term if such removal is necessary for the development to go ahead. This applies even if there is no break clause in the lease. However, the telecoms operator then has 28 days in which to serve a counter notice and, if they do, the matter will then be decided by the Court. The Court, following the Code, could order that the mast should stay even if this prevents the development from going ahead and compensation will be awarded to the landowner to reflect what would have been a fair and reasonable agreement had the decision to keep the mast on the property been made willingly.

This process has not been tested in the courts so it is difficult to presume the outcome in any individual situation. It is thought that while there are still available sites telecoms companies do not want to incur the probable compensation payout or the negative publicity. This may change however as sites become rarer and the telecoms companies are keener to hold onto the sites that they have.

At the end of the lease term?

This same procedure applies should you want to terminate the agreement at the end of the lease and again there is no way to predict how the Court might respond. The Court will need to take into account whether the losses to the landowner can be adequately compensated for by monetary compensation, the availability of suitable nearby sites and the overriding principle that the public should not be denied access to a telecommunications network.

Anyone wishing to remove a mast from their site should ensure that notices are served as soon as the right to require removal arises which, at the end of the term will be the day following the last day of the term. Collection of rent should cease until agreement has been reached about removal and be collected following the removal of the equipment. This will avoid a periodic tenancy and any rights to remain relating to such a tenancy arising.

Currently Code powers are rarely used and it is usual that operators can be removed through straightforward negotiation. This could be because, if the matter is decided in Court, they may be ordered to pay compensation to the landowner or because there are other easily available sites. However, as more people become concerned about the possible health risks it is likely that alternative sites may become rare and code powers may be used more frequently. This could cause real problems for those landowners and developers who have existing mobile phone masts on their land.

Disclaimer

The content of this article does not constitute legal advice. You should always consult a suitably qualified lawyer for professional advice about any specific legal matter of concern to you. George Davies Solicitors, its partners and staff do not assume any responsibility for information contained within this article and disclaim all liability relating to such information.

George Davies was highly rated, in the North West, in 11 different categories of the 2006 Legal 500 review and in Chambers and Partners UK Directory. They specialise in all aspects of commercial law and boast a specialist niche Construction team with experience in a full spectrum of construction law services. The team was commended in the Legal 500 for its breadth of expertise, efficiency, and ability to provide specialist advice. Chambers specifically mention its achievements in Construction. Catherine Kay can be contacted on 0161 234 8861 or emailed at catherinekay@georgedavies.co.uk. www.georgedavies.co.uk

Printer friendly version

Email this article to a friend