Case Study

Landowner subject to telecoms masts burned by the 'acid' test

2nd August 2019

Landowner subject to telecoms masts burned by the 'acid' test

The legislation that regulates the relationship between telecoms network operators and landowners was updated at the end of 2017, but following a series of rulings, one expert asks whether telecoms operators are being favoured when it comes to applying the new Electronic Communications Code.

“Over the past 18 months there have been a spate of cases where the Upper Tribunal (Lands Chamber) has found in favour of telecommunications operators when applying the new Electronic Communications Code (“the Code”),” states Paul Barker, a Property Disputes expert at Higgs & Sons.

“The Code regulates the legal relationships between landowners and network operators, giving rights (known as Code rights) to network providers to install and maintain apparatus on land. Code rights apply to the equipment operators require to provide a network such as fibre optic cables, mobile phone antennae and masts.”

“Under paragraph 21(5), the Tribunal may not impose Code rights if it thinks that the landowner intends to redevelop all or part of the land to which the Code right would relate, or any neighbouring land, and could not reasonably do that if Code rights were imposed.

“There have been several cases over the past 18 months in which rulings were made in favour of network operators, and that operator-friendly trend seems set to continue, based on the outcome of a recent decision of the Tribunal.”

In EE Limited and Hutchinson 3G UK Limited v Trustees of the Meyrick 1968 Combined Trust of Meyrick Estate Management [2019] the Tribunal adopted the new “acid test” introduced by the Supreme Court in the Landlord and Tenant Act 1954 (the “1954 Act”) case of Franses v Cavendish [2018], finding that the landowner’s conditional intention to redevelop could not prevent rights under the Code from being acquired.

The operator had served a notice on the landowner under paragraph 20 of the Code requesting Code rights. The landowner tried to oppose the application alleging that it intended to redevelop the land. The proposed redevelopment involved replacing the operator’s masts with taller masts, to install fixed wireless access broadband.

Paul Barker continues: “The Tribunal held that a landowner must demonstrate both a reasonable prospect of being able to carry out the redevelopment project (an objective test) and a firm, settled and unconditional intention to do so (a subjective test).

“Although the landowner satisfied the objective test, in that it had both the necessary planning permission and the financial means to proceed, it fell foul of the “acid test”; namely, would the landowner still do the works if the tenant left voluntarily? If the landowner only intended to redevelop to prevent the operator from obtaining Code rights, then they would fail.”

The Tribunal held that it was clear that the landowner’s redevelopment plans were an attempt to frustrate the operator’s application for Code rights, in response to the lower rents now achievable under the Code. The proposed scheme was not financially viable and the landowner had not proved a need for faster broadband, nor considered alternative ways to improve broadband than the financially unviable scheme.

“Although the case provides clarity on how paragraph 21(5) of the Code will be applied, landowners seeking to defeat Code rights by redevelopment will now face the same scrutiny by the Tribunal as landlords seeking to rely on ground (f) of the 1954 Act.

“We would always recommend that landowners intending to redevelop land or buildings subject to telecoms apparatus seek legal advice from a specialist lawyer at the earliest stage, to maximise their prospects of implementing their proposals.”

To discuss any of the issues raised in this article please contact Paul Barker.

 

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