With mobile phones being ubiquitous in our professional and personal lives, having a strong network connection has never been more important. To facilitate this, telecoms operators have significant statutory powers to install, operate and maintain their equipment on land under the Electronic Communications Code.
This can, unfortunately, interfere with a property owner’s rights over their land so operators must have an agreement in place before putting a mast on your land.
What does the agreement process involve?
Usually, the operator will look to secure a voluntary agreement before starting any statutory process but this will depend on the circumstances, including the level of engagement with the operator and the operator’s timescales. To commence the formal procedure, the operator must give you formal notice of their intention to put a mast on your land and the terms of the agreement they propose. The agreement should cover, at minimum:
- the rights sought by the operator including in relation to installation;
- the duration that the mast will be on your land; and
- the amount they should pay you in rent for having the mast on your land.
The notice will give you 28 days to agree terms. Unless an agreement is reached within that period, the operator may choose to go to the Lands Tribunal to seek to have an agreement imposed upon you. If that happens, parties should continue to negotiate throughout the Tribunal proceedings, in an effort to reach a voluntary agreement and therefore save on costs associated with the Tribunal proceedings.
What happens if the operator goes to the Lands Tribunal?
The operator’s application to the Lands Tribunal will set out the terms they seek to have imposed. You as landowner can oppose this. This is done by producing a response to the operator’s application.
For the Tribunal to impose terms, two key access tests must be met.
First, the prejudice caused to the site provider – i.e. you, the landowner - must be capable of being adequately compensated in money. That isn’t a particularly high hurdle to cross.
Second, the Tribunal considers whether the benefit to the public from allowing the installation of a mast outweighs the prejudice to you in terms of free enjoyment of your land. The prejudice test is usually met as improving communication networks is considered to be of key importance to the public .
There is also protection for owners intending to develop their property. The Tribunal cannot impose an agreement if the owner intends to redevelop and will be prevented from doing so if the agreement is imposed.
What is the likelihood of a mast installation being refused?
In very rare cases the Tribunal can, and do, find that the access tests mentioned above are not met.
Every situation is different, but it’s worth noting that the Lands Tribunal rarely opposes the installation of a mast so you should be prepared for that outcome. Continuing to negotiate during the Tribunal process is often used to agree more reasonable terms, including the rent that should be paid to the landowner.
Any further advice?
It is important that you seek legal advice early, at the point of receiving notice of the operator’s intention to put a mast on your land, and that input from a telecoms agent is obtained, to ensure that the best terms are reached for you. You will likely receive a payment from the telecoms operator towards the professional costs you incur in negotiating an agreement. You won’t however recover any of your legal costs associated with the Tribunal proceedings unless you are successful and receive an award for expenses.
Associate Calum MacPherson advises on real estate disputes and is based in Brodies’ Inverness office. Scott Logan is a partner and expert in telecommunications.
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