Landowners often contact us asking if they have to accept a telecom mast on their land.
This article outlines your rights and obligations under the Electronic Communications Code.
The Electronic Communications Code is the key provision governing the rights of telecommunications operators. There is a growing need for access to electronic communications services, so the code aims to balance the competing interests of landowners, occupiers, the telecoms industry, and its customers.
Who is a code operator?
An 'operator' is a person to whom the code applies under a direction from Ofcom. Ofcom's website contains a complete list of operators. The code gives operators significant powers to install equipment.
What does the code apply to?
The code applies to an 'apparatus' that provides an electronic communications network.
What are the code rights?
A code right is granted to an operator to carry out various activities on land, including:
- Installing, keeping, inspecting, maintaining, altering, repairing, upgrading, operating an apparatus.
- Carrying out works to the land (or elsewhere) in connection with an apparatus.
- Connecting to a power supply.
- Interfere with or obstruct means of access to or from land; and
- Cutting back any tree or vegetation that does or may interfere with the apparatus.
How are code rights obtained?
Code rights can be obtained in one of two ways:
- An agreement between the operator and you (as the occupier or owner of the land); or
- By an order of the Upper Tribunal (Lands Chamber) (One of four chambers of the Upper Tribunal which settles legal disputes).
How can an agreement be reached?
Code rights can arise from an agreement made between the operator and the occupier.
Whilst a code agreement can take effect through a lease agreement, this is unnecessary. However, it must:
- Be in writing and signed by or on behalf of the parties;
- State for how long the code right is exercisable;
- State the period of notice required to terminate the agreement; and
- Confer at least one of the code rights.
Who will a code agreement bind?
- Any successors in title to your interest to the land (i.e. if someone purchased your freehold interest);
- Anyone deriving an interest from your title, such as a tenant
- Anyone in occupation of the land.
It should also be noted that the operator has the 'power to assign' a code agreement reached. Therefore, this means if you entered into an agreement with the operator, they could assign their interest to another operator in the future. Furthermore, if certain conditions are met, the operator can upgrade or share their apparatus.
If a Code Agreement is not possible, how is an application made to the Tribunal?
If the parties cannot reach a code agreement, then the Upper Tribunal (Lands Chamber) has the power to 'impose' an agreement on the parties.
The operator must make an application to the Tribunal for an order, but before making any court application, the operator must first serve a notice on you setting out:
- The code right;
- The land to which the code relates
- All other terms of the agreement sought by the operator and stating that the operator is seeking agreement of these terms.
The operator has the power to apply to the Tribunal after 28 days of the notice on the basis that the parties are not able to come to an agreement.
When will the Tribunal impose an order?
The Tribunal will only impose an order if it is satisfied that any loss you may suffer is:
- Capable of being compensated financially; and
- Outweighed by the public benefit to be gained from the operator's proposal.
This is also known as the 'Paragraph 21 Test'.
The Electronic Communications Code is a complex area of law. We have helped many landowners with telecom lease cases. If a telecom operator contacts you about entering into an agreement, it's important to seek specialist legal advice before agreeing to the terms.
