The Electronic Communications Code (the Code) sets out the "Code rights" enabling telecoms operators to install and operate their equipment. Here we look at the ancillary rights which typically need to be considered when negotiating a Code lease (in addition to the key Code rights to install, maintain, upgrade and share use of telecoms apparatus).
In addition to installing telecoms apparatus such as masts, antennas, and dishes, operators may need to install electricity cables to supply power to that equipment and fibre cables to provide a wired connection to the wider communications network. Depending on where the apparatus is being located, and any existing cabling present in the building or land, the parties will need to consider:
- the cable route i.e. in a building are there risers / existing cabling which can be utilised or, across open land, picking a route which avoids sterilising future land uses and/or mitigates its impact;
- whether any third-party consents are required i.e. funders, neighbouring owners, etc;
- if connecting into an existing power supply, does a meter need to be installed and, if so, at whose cost?
Telecoms operators will need to come and go over land, or through buildings, with machinery and equipment to undertake installation, maintenance and upgrading works. Operators usually require 24/7 access upon reasonable prior notice (and no notice in emergency situations). Access arrangements should be determined on a site-by-site basis and it is prudent to include provisions setting out the agreed access arrangements. These might include (particularly on initial installation) information such as:
- which contractors will be attending and for how long;
- what sort of vehicles or machinery will be used;
- security and health and safety procedures; and
- notice periods and requirements (e.g. permitted hours for planned works).
3. Temporary set-down areas
Operators often require the temporary use of set-down areas outwith the lease demise to park and turn vehicles, store materials and machinery and to use cherry pickers / cranes. It is reasonable for owners to facilitate this, so long as their enjoyment of their property is not adversely affected. It is prudent to agree in advance the location and size of any set-down area, what it may be used for, and for how long and the notice that must be given before use is made of it.
4. Lopping and cutting back vegetation
Code rights include the right to lop or cut back any tree or other vegetation that interferes or may interfere with electronic communications apparatus. It is common to include this right over the wider land-holding allowing the operator to remove or cut back trees or vegetation that interferes with line of sight or otherwise causes interference to the equipment. The owner should be compensated for the loss of any trees or damage caused and careful drafting may be required where commercial forestry is involved.
If you are an operator, site provider or landowner with concerns or queries about the Code or how it may impact you or your business, please do not hesitate to get in touch with our Real Estate team or your usual Brodies contact.