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The Code regulates the rights of electronic communications operators (listed on the OFCOM register of persons with powers under the Code) to install and maintain their apparatus on public and private land.
Since the introduction of the Code, the law in this area has continued to develop and that’s why it’s important to consult with knowledgeable and experienced solicitors. There have been a number of Tribunal and Court decisions on the interpretation and application of the Code to existing and new agreements. For landowners, this can make dealing with operators, whether in respect of existing agreements or requests for new agreements, a challenging, uncertain and sometimes difficult experience.
The law also gives operators with Code rights significant security of tenure. If you are seeking the removal of electronic communications apparatus, say for redevelopment, it is important to understand the process and timescales associated with the removal of operators, so that it can be factored into those redevelopment plans.
Our expert telecommunications lawyers are here to support you with pragmatic and commercial legal advice on a range of related issues.
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Removal of Electronic Communications Apparatus for Redevelopment
If you are considering redeveloping land or buildings, which will require the removal of existing electronic communications apparatus it is essential that you get strategic legal advice on your position.
The operators may have contractual rights, which need terminating as well as rights of security of tenure pursuant to the Code and / or the Landlord and Tenant Act 1954.
With any mast removal project time is an important factor. Getting early advice on your position means you can understand the time and costs associated with the termination of the operator’s agreement and the removal of the apparatus so that the proposed redevelopment can proceed.
Requests for Access to Land and Buildings
You may be approached by an operator or (more likely) their agent for short term licence / agreement to access your land or buildings for the purposes of carrying out a survey to ascertain whether it is suitable for the installation of electronic communications apparatus.
Under the Code there is no such thing as a short term licence / agreement. If a landowner enters into an agreement with the operator, granting Code rights for access to their land and buildings, it is likely that the operator has been granted a Code agreement with the security of tenure rights under the Code.
In order to deal with this the Code provides that operators can seek access rights by way of an “interim rights” agreement. These is a special type of agreement, under the Code, which must be imposed by the Tribunal.
If you are approached by an operator for access (operators often call these multi-skilled visits or an MSV for short) you should seek legal advice on how to deal with the access request so that you can consider how best to protect your property asset.
New Code Agreements
The Code sets out a procedure whereby operators can seek the imposition of a Code agreement on a landowner by making an application to the Tribunal for an agreement for the right to install and maintain electronic communications apparatus on their land or buildings.
Prior to an operator seeking these rights the landowner may well have had advanced warning as it is likely that the operator will have already requested rights of access and / or the operator may have made a planning application.
If an operator wants a new Code agreement they are likely to serve a notice on the landowner (known as a paragraph 20 notice). The timescales for the landowner to respond is relatively tight (28 days from the date of service of the notice) before the operator can apply to the Tribunal for the imposition of an agreement granting Code rights.
Therefore, if you are approached by an operator seeking rights to install apparatus on your land and buildings or receive a paragraph 20 notice you should seek legal advice at the earliest opportunity and should not ignore the request or the notice served by the operator.
Renewal of Existing Agreements
If the contractual term of an existing agreement has expired and the operator is seeking the renewal of the agreement it is likely that the first step the operator will take is the service of a notice seeking a renewal and setting out the terms they propose for the renewal agreement.
As to the correct legal route for the renewal of an existing agreement it will depend on the nature of the agreement and / or when it expired. However, whichever route applies it is likely that the terms that will be proposed by the operator will differ significantly from the terms of the existing agreement.
If terms cannot be agreed between the parties the operator may make an application to Court or the Tribunal for a determination of the terms of the renewal agreement. Therefore, obtaining advice on your legal position, and in respect of the terms of the renewal agreement being proposed, is key.