The Electronic Communications Code: Rights of Landowners & Mobile Network Operators

Mon 27th May 2024
A row of telephone poles from mobile networks sit in a rural field

Ensuring all areas, particularly rural areas, have mobile network coverage is of the utmost importance to the UK’s digital infrastructure and particularly important for emergency services networks. In 2017, the Government introduced the updated Electronic Communications Code (‘the Code’) to support the rollout of digital communications infrastructure across England and Wales.

 The Code is set out in Schedule 3A of the Communications Act 2003. It confers almost unchallengeable rights to a mobile network operator who can install and operate telecommunications equipment on private land. To do so, they will need to enter into a lease with the landowner.

The Code applies if the mobile network operator (Code Operator) is Ofcom registered, the agreements to be entered into will be in writing and, the agreement has the purpose of granting one or more of the rights listed within the Code.

This includes rights such as installing and keeping apparatus on the land as well as operating and maintaining equipment and rights of access. What else do landowners need to be aware of? Trudy Rosevink, Solicitor in Coodes’ Commercial Disputes team, explains.

A mobile network operator wants to install equipment on my land. what are my rights, and can I refuse?

Code Operators identify suitable land or buildings for the placement of telecoms equipment. Under the Communications Act 2003, Code Operators can approach landowners to request land access and agree to a lease. The lease will cover the siting and ongoing operations of the telecoms equipment.

The Code confers powerful rights to the mobile network operators. Should the landowner refuse to enter into the lease, or allow access to the land, the Code Operator can apply to the Court. Section 21 of Schedule 3A of the Communications Act 2003 sets out the test which will be applied by the court when considering whether it can grant an order.

The court can grant an order if the following conditions are met:

  1. The prejudice caused to the landowner is capable of being adequately compensated by money; and
  2. That the public benefit likely to result from the making of the order outweighs the prejudice to the landowner.
  3. The court cannot make an order if the landowner can show that they intend to redevelop all or part of the land to which the Code right would relate.

To be able to refute the above or show intention to redevelop is a high bar for landowners to meet. Therefore, it is only in extremely limited circumstances that an order for a lease isn’t granted to the Code Operator.

My existing lease with a mobile network operator is due to expire. Do I have to enter into updated terms?

It is not possible to exclude the operation of the Code from lease renewals. 

Do you have an existing telecommunications mast lease entered into under the Landlord and Tenant Act 1954? Alternatively, did you enter into an old Electronic Communications Code lease prior to the 2017 update now due for renewal? Whilst many of the terms in the existing lease can be carried over, there are now additional terms. The Code Operator can insist on these being included under the rights granted by the Code. These terms fall heavily in favour of the Code Operators.

However, there is sometimes scope to negotiate on some terms. Recent case law has improved the approach to assessment of the rent payable through comparable evidence from similar renewal cases. This gives the landowner some leverage in negotiating the best rent possible with the Code Operator.

What are my next steps?

If you have been approached by a mobile network operator (Code Operator) to enter into a lease to install and operate telecoms equipment on your land, or if you are due to renew an existing lease which now falls under the Code, our Commercial Property and Commercial Disputes teams at Coodes can advise you and assist with navigating the negotiations to achieve the best outcome for you.

Get in touch with Trudy Rosevink via email or by calling 01579 324016. Alternatively, you can find out more contact information or fill out our online form here.

Mon 27th May 2024

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