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Can you ever remove telecoms operators?

21st July 2020

Can you ever remove telecoms operators?

In recent times telecoms operators‘ rights have gone from strength to strength and landowners have found themselves at the mercy of the operators. Often landowners have regretted ever allowing a telecoms operator onto their site because they have found it now on impossible to remove them once they have taken up occupation.

The upper tribunal has helpfully given some ray of hope to some landowners by deciding that where telecoms operators were occupying under agreements which were granted end of the old telecommunications code and which had expired before the new code came into force no longer have any code protection and cannot apply for fresh code rights. The effect of this is that the landowner is able to serve a removal notice up on the operator and the operator has no option but to leave.

A new Electronic Communications Code came into force on 28 December 2017.  Part 4 of that code gives approved telecoms operators the right to install and maintain their equipment on private land and is very favourable to operators in terms of the amount of rent that they have to pay for their occupation.  The 2017 code was not retrospective and repealed the old code but it did contain some transitional provisions for ongoing agreements.

A subsisting agreement was one which was granted under the old code and was in force when the new code came into force in December 2017.  The termination and removal provisions under the new code provide protection for subsisting agreements which mean that a landowner can only terminate by relying on 1 of 4 statutory grounds, including redevelopment.  Once the agreement had been terminated, removal of the equipment was the second stage of the process and as a result, landowners often faced a lengthy time period before they could get back possession of their land.

In the case of Arqiva Services Limited v AP Wireless II (UK) Limited [2020], the telecoms operator, Arqiva occupied under a lease which had originally been contracted out of the 1954 Act (which meant that the operator had no automatic right to renew the tenancy) which expired in October 2016.  It had stayed in occupation even after the contractual lease had expired and it was at that time protected from the landowner seeking removal of the equipment.  The old code did not have the effect of continuing code rights granted under the lease, which meant that the landowner needed the permission of the Court to require removal of the equipment and the operator remained entitled to ask for new code rights.  In this case, the Tribunal found that Arqiva was actually occupying the site under an implied tenancy at will which fell outside of the protection of the transitional provisions of the code.  It had no protection under the Landlord and Tenant Act 1954 as tenancies at will are expressly excluded from such protection.

 As it did not have any code rights, the operator sought to obtain fresh rights under part 4 of the code, including temporary rights to keep the equipment on site until the application for permanent rights had been dealt with.  The Tribunal looked at 2 recent Court of Appeal cases on code interpretation and found that Arqiva was not entitled to remain on the site.

Arqiva were found to have no protection under the new code.  The Tribunal has indicated it will give permission for Arqiva to appeal the decision but if it remains good law then that will mean that a landowner in this scenario can bypass the termination procedures in the code and serve a removal notice requiring the operator to agree within 28 days a reasonable period in which to vacate the site.

Although under the new code, operators are very protected, there are still a number of old telecoms leases that were granted under the old code and were specifically contracted out of the Landlord and Tenant Act 1954, which means that there will be many occupations which are now vulnerable to this new decision.

If you would like to discuss any issues raised in this article, please contact Nyree Applegarth on 01384 327 151 or email nyree.applegarth@higgsandsons.co.uk 

 

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