Telephone masts - not in my back yard thanks

As the saying goes, an Englishman’s home is his castle and there is nothing quite like a disagreement regarding someone’s castle to make litigation personal. Having a dispute with a neighbour regarding a boundary is one thing but what about when a telecoms provider wants to install equipment on your land?

There is a statutory framework, The Electronic Communications Code 2017 (the “Code”) that grants operators of telecoms equipment (“Operators”) various, and potentially extensive, rights (the “Rights”) over your land which include rights to:-

• Install electronic communications apparatus and to keep it installed on, under or over your land;
• Inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus and to enter your land and to carry out any works for or in connection with these activities;
• Install a power supply;
• Interfere with or obstruct a means of access to or from the land;
• Lop or cut back any tree or other vegetation that interferes or will or may interfere with electronic communications apparatus.

When does the Code apply?

The Rights may only be conferred on an Operator by an agreement with the occupier. An occupier might be a freeholder, or a leaseholder, or could simply be a licensee or even a squatter (the “Occupier”). Once the Rights have been conferred they will bind any person who subsequently acquires the land, therefore, it is worth considering the impact the Rights will have on any current or future conveyance or planned development of the land.

An  agreement must be; in writing, signed by or on behalf of the Parties, state for how long the Code right is exercisable, and state the period of notice (if any) required to terminate the agreement.

So what happens if you refuse to be bound by the Code?

The Court has the power to impose the Code upon an Occupier who refuses to be bound by it if it is satisfied that:

• The prejudice caused to the Occupier is capable of being adequately compensated by money; and,
• The public benefit outweighs the prejudice to the Occupier.

The Court can order an Operator to pay an Occupier for their use of the land but this will be on a case-by-case basis.

Should you refuse to agree to be bound by the Code?

The case of Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General Partner Ltd (7 June 2019) provides a cautionary tale for any Occupier who refuses to consent to an Operator’s request. Although the Occupiers were ultimately successful in resisting the Operator’s request in this case, the Court penalised them when deciding what legal costs the Operator would pay because, in the Court’s view, the Occupiers had acted unreasonably.

Anyone who is approached by an Operator needs to consider the scope of the proposed agreement carefully. A counter proposal limiting the scope of the Rights to specific tasks could be more reasonable than an outright refusal. Certainly a judge presented with an Occupier who has tried to reach some agreement is likely to receive better treatment than an Occupier who simply refuses to engage with the Operator or who provides an unqualified objection to the request.

No two cases are the same and should you be faced with a request from an Operator, our property litigation team has extensive expertise to be able to advise you on the request and how to respond.