Telecommunications Mast Update – Negotiating the New Code

Many of you will have read in the press of the difficulties facing landowners with telecommunication mast operators seeking to take advantage of the Electronic Communications Code (‘the New Code’), which came into force in December 2017. There have recently been some interesting court decisions, which are particularly relevant and helpful to the landowners’ negotiating position.

 The Upper Tribunal (Lands Chamber) decision in CTIL v (1) Ashloch Limited (2) AP Wireless II (UK) Limited [2019] has clarified that, where an operator has a lease that was already in force when the New Code took effect, and which is protected under the pre-existing Landlord and Tenant Act 1954 (‘the ‘54 Act’), the termination and renewal procedures in the ’54 Act will prevail over the New Code.

 This means that if your lease was already in force by 28 December 2017 and is protected under the ’54 Act, then the operator should be following the ’54 Act procedure to secure a new agreement. An implication of this is that the potentially much more favourable rent assessment mechanism in the ’54 Act will apply instead of the one in the New Code, which disregards the valuable telecom use.

 Although it may not be prudent to force an operator to follow the ’54 Act procedure, the existence of a protected tenancy clearly provides a much stronger negotiating position. Furthermore, even where a lease was not protected, if the contractual term expired before the New Code took effect and the operator stayed in occupation, then a protected periodic tenancy may have arisen by implication.

 Whether a new tenancy has arisen and if it is protected or not will ultimately depend on the behaviour of the parties. Operators may argue that a tenancy at will, which is not protected under the ’54 Act, has arisen where a landowner’s agent has been negotiating terms for a new lease since the old one expired. This highlights the importance of instructing a specialist who will not prejudice your position.

 Another particularly useful Upper Tribunal (Lands Chamber) decision was CTIL v Compton Beauchamp Estates Limited [2019], which was upheld by the Court of Appeal. This made it clear that an operator cannot impose a New Code agreement on a landowner where another operator is already in occupation. Again, we have found that this can significantly help the landowner’s position in negotiations.

There is also now clearer guidance on how the rent should be determined if your circumstances do fall under the New Code. Therefore, if an operator has written to you seeking to lower the rent for your telecoms mast please do not hesitate to get in touch. We would be pleased to undertake a thorough review and provide clear advice at the outset as to how we would recommend you proceed. Please contact Harrison Riddle on 01536 532399 email harrison.riddle@berrys.uk.com.