Telecoms masts and cables are often not where you want them to be. Developers will often ask can we lift and shift the telecoms equipment on our site. They will generally be looking to relocate a mast or cables or to have them removed altogether so that they can maximise the land available for development.
Who is in control of the telecoms equipment?
The first task will be to identify the operator who controls or owns the equipment. The answer will often lie in the title pack which may include a lease or wayleave agreement with the operator. While a wayleave agreement is a contract which generally only binds the parties to the agreement, a new owner such as a developer who has bought a development site will generally be bound by any existing telecoms agreement. Most telecoms operators have statutory rights under the Electronic Communications Code ("the Code") which permit them to keep and operate the equipment, even when a site has been sold to a different owner.
And so, it may then be a case of checking if the original operator still exists and whether their business was sold to another supplier so that negotiations can begin.
What rights do telecoms operators have under the Code?
Those telecoms operators who have been approved by Ofcom, the industry regulator, have the right to install equipment in under or over land and maintain, upgrade and operate that equipment. These rights extend to carrying out all works necessary to operate the equipment, connecting to a power supply and cutting back trees and vegetation which are interfering with their operations. An agreement is required to confer these rights but operators can apply to the Lands Tribunal for imposed rights where agreement cannot be reached with the owner or occupier of the site.
Operators may also be entitled to alter the equipment and remove it or replace it. But can they be forced to do so?
Can a developer demand that telecoms equipment be moved or removed?
The best case scenario for a developer seeking to remove the equipment altogether is where the code agreement with the operator contains permission for the site owner to demand relocation of apparatus. That may be enough to allow the developer to negotiate with the operator to relocate the equipment to suit the planned development.
If the agreement has no such provision, a developer can serve notice to terminate any existing agreement but only at or after the contractual expiry date of the agreement. One of the very limited grounds for termination is that the site owner or provider intends to redevelop all or part of the land or any neighbouring land affected by the code agreement and cannot reasonably do so unless the code agreement comes to an end.
This involves the developer site owner serving 18 months' notice in response to which the telecoms operator may serve a counter notice within 3 months and within another 3 months apply to the Lands Tribunal for the agreement to be amended or renewed. The developer will then have to satisfy the Tribunal that there is a genuine intention to redevelop. If the developer succeeds, the Lands Tribunal must make an order to terminate the agreement at the end of the 18 month notice period.
Termination is the first step in a two stage process and further procedures may be required to enforce removal of the equipment. To do this, the owner must serve further notice requiring the operator to remove the equipment and to restore the land within a reasonable period. Unless agreement is reached on the timescales for doing so, the owner can apply to the Lands Tribunal for an order requiring the operator to remove the equipment.
The relocation or removal of telecoms equipment on site will inevitably take time, however it is achieved. It is key for developers to locate any existing equipment at the earliest opportunity and begin discussions with the relevant operator and ideally reach agreement on any lift and shift proposals. It is also important for developers when entering into any agreements with operators to negotiate some wriggle room to shift any new equipment to suit their current and future development plans.
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