The 2017 Electronic Communications Code has placed downward pressure on rents achievable from telecommunications masts by site providers. Commonly I’ll hear something along the lines of, “they are now more hassle than they are worth” from my clients in response to lease renewal terms from mobile network operators. Their next question is usually, “how do I remove the mast from my land?”. Whilst I don’t plan to comment on whether current rents compensate the burdens of telecommunications masts as there are two sides to the argument and I’m sure that everyone agrees that improved coverage in the UK is a necessity; there will be some cases where site providers feel that they can put their land to better commercial use, so in this blog I discuss the scenarios and processes where a site provider may successfully remove a telecoms mast from their property.
Removing telecoms infrastructure from land is not straightforward. Telecoms networks are statutorily protected so that coverage to the general public can be maintained. I think it is fair to say that if masts and infrastructure could be removed readily by site providers many of us would struggle to make a phone call! The protection is in place for good reason but there are some scenarios where site providers can successfully remove a telecoms mast from their land.
Redevelopment is the most likely route to achieving vacant possession. The Electronic Communications Code and the Landlord and Tenant Act 1954 provide site providers with a means to terminate a telecoms agreement on the proviso that they wish to develop that land. Development is defined by the Town and Country Planning Act 1990 at section 55(1) as:
“the carrying out of building, engineering, mining or other operations in, on, over or under land”
The definition of what constitutes development is wide and open for interpretation, ultimately being decided by Local Planning Authorities. However, the courts have made clear at S Franses Ltd -v- The Cavendish Hotel (London) Ltd [2018] UKSC 62 and EE Limited and Hutchison 3G UK Limited -v- Meyrick 1968 Combined Trust of Meyrick Estate Management [2019] UKUT 164 that landlords and site providers cannot use redevelopment for the sole purpose of removing a telecoms operator from their land. They must provide an undertaking to the courts that they will see the development scheme through to completion and also demonstrate it is a scheme that would be in their commercial interests to carry out regardless of whether the telecoms mast is in situ or not.
If for example, a site provider wishes to add another floor or floors to their property and let that additional accommodation that scheme of works is likely to not fall foul of the law provided their business case for the development is sound and justified.
Statutory notices need to be served on the operator to commence the termination of the telecoms agreement and the operator has the opportunity to serve a counter notice if it wishes to remain in occupation. It is also important for site providers to acknowledge that it is not easy for operators to find replacement sites. Prospective site providers may have similar feelings to existing when it comes to the burdens faced, they don’t see a real commercial benefit. Only once a replacement site is found and has been integrated into the network will an operator look to decommission an existing site and remove their equipment. Maintaining coverage is paramount.
The good news is the notice periods set out in the 2017 Electronic Communications Code were designed to provide an operator with all of the time necessary to replace coverage from a site that has been subject to a termination notice from their landlord. The bad news for site providers is it can be a long process to achieve vacant possession and in most cases a costly one too. Specialist advice from solicitors and surveyors is highly recommended to navigate the process.
Loxley Maynard would be happy to speak with site providers considering redeveloping their property or renewing their telecoms leases and provide advice where needed.
12 July 2022
By Richard Nelson MRICS