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Revised legislation for mobile masts aims to strike a better deal for operators

Media
Revised legislation for mobile masts aims to strike a better deal for operators

As telecommunications technology advances, the UK Government is driving change to ensure the infrastructure on which we now rely is expanded to cover a wider area and allow operators the space to install the latest technology.

The Telecommunications Code

The Telecommunications Code was first enacted by the Telecommunications Act 1984. In 2003 the Code was extended to cover all electronic communications and the Digital Economy Act 2017 replaced existing legislation with a completely new Electronic Communications Code (“the 2017 Code”).

Since mobile phone use became widespread many landowners have benefited from receiving a reasonable rent in exchange for the grant of a lease of a small area of ground to a telecoms operator. The sites are often located in the corner of a field or on a hilltop with a small site footprint. Generally, leases on favourable terms to the landlord were granted.

2017 Code switches balance in operators’ favour

The 2017 Code attempted to tip the balance in favour of the operators of the mast sites to allow them to upgrade their equipment, share it with other competitors and reduce rents to what some landlords have deemed a pittance. Since the legislation came into force at the end of 2017 there has been much debate between landowners and operators about what the operators can and cannot do at their sites and a number of cases across the UK have ended up in court as the industry tries to establish exactly what the law is and how it should be implemented.

Further legislation in 2022

The UK Government’s latest attempt to clarify the law comes with the Product Security and Telecommunications Infrastructure Act 2022 which received Royal Assent on 6 December 2022 (“the 2022 Act”). The legislation is partly in force now with the remaining provisions becoming law as regulations are introduced in due course.

Aims of the 2022 Act

The Act is designed to reduce the tension between landowners and operators. This tension is widely seen to be delaying digital roll out across the country. The principal aim of the Act is to amend the 2017 Code to support the fast and efficient rollout of gigabit-capable broadband and 5G networks to businesses and households in a way that balances the interests of landowners, telecoms operators and the public. There can be no doubt that the public demand for telecommunications technology is huge.

The 2022 Act is the first major change to the 2017 Code and follows wide consultation. The Act includes a new duty for operators to consider using Alternative Dispute Resolution to settle disputes before heading to court. Operators must make landowners aware that ADR is an available option, failure to do so will be taken into account where a court is awarding costs.

The 2022 Act extends rights to operators to upgrade and share equipment installed before the 2017 Code came into force, provided there is no material impact on the owner or occupier of private land. There is a new procedure for operators to quickly obtain Code rights over certain types of land, where a landowner fails to respond to repeated requests for access. Such rights would include wayleaves for the installation of cables necessary to serve a site. The operator will also be able to ask a court to impose an agreement on the landowner under the Code if the landowner is unresponsive and will not engage with them.

What the future holds

How these changes are taken forward by the industry remains to be seen. In all cases it is worth getting a specialist land agent to negotiate on your behalf before seeking legal advice once agreement has been reached or if matters are in dispute. For now the low rent regime appears here to stay but perhaps in time the value of these sites will return.