Episode 4: What do I do if...I'm asked to put a telecoms mast on my land?

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee, and in this series we take an in-depth look at some common and not so common questions and scenarios that Brodies lawyers have faced over the years.

In each episode we talked to Brodies experts to hear their insights and experiences and how they find the right approach when asked that deceptively simple question, “what do I do if?”

Our current focus is on health and safety and land and rural business and I'm joined today by Legal Director Scott Logan and Partner Lucie Barnes to address an increasingly common question in rural Scotland, “What do I do if I'm asked to put a telecoms mast on my land?”

So Lucie I'll come to you first - why might a landowner be asked to do this? Why might they be asked to put a telecoms mask on their land?

00:00:56 Lucie Barnes, Partner, Brodies LLP

The driver will generally be a sort of a wireless telecommunications operator - so think your sort of mobile phone technology - is either tasked or it's got a commercial reason and for wanting to improve the connectivity in that particular part of the world.

00:01:18 David Lee, Host

And is it increasingly common Lucie?

00:01:21 Lucie Barnes, Partner, Brodies LLP

We would say that it's more and more common. Some of the reasons behind that is obviously increased consumer demand. Also, government policy rolling out better technologies - so you think how many GS we've had, I think around 5G now. So there's many reasons for that which is making it more and more common, but I think the fundamental change has been the introduction of the electronic communications code. The new electronic communications code was introduced towards the end of 2017, so we're very much seeing the mechanics of that coming through, and that essentially has given far greater powers to the operators to roll out this this infrastructure.

00:02:09 David Lee, Host

And Scott, how is Scotland doing in terms of its kind of mobile connectivity at the moment?

Do we still have a lot of areas that aren't well connected and is that is that what's driving this need for more telecoms masts?

00:02:24 Scott Logan, Legal Director, Brodies LLP

There are large areas of Scotland that do not have good connectivity at the moment.

So there are various initiatives to try and address that at the moment and deal with the so-called “not spots” where there's currently no coverage from any operator at the moment. So for example, we've got the Shared Rural Network which is picking up pace and will see a £1 billion investment in new masts and upgrades to eliminate these "not spots", and that's an initiative being delivered by the four main UK mobile network operators - Vodafone O2, 3 and EE - with support from the government and that aims to provide 4G coverage to 95% of the UK by the end of 2025. So obviously that we will see a greatly enhanced mast network to deliver that.

The rollout of 5G networks will also see a significant increases in the number of masts and towers to begin with a number of the existing masts may not be suitable for 5G deployment. And as the area covered by 5G signal is much smaller than the area covered by 4G, this means considerably more masts will be needed to cover the same area. In urban areas this will be less noticeable as 5G infrastructure can be hosted or accommodated on street furniture and the like, but in rural areas this will inevitably mean lots more new masts.

00:03:52 David Lee, Host

And when you talk about the "not spots" Scott, the obvious areas are we talking about Highlands and Islands Argyll and Bute? You know Dumfries and Galloway borders, etc.

Is it the areas you would typically think the ones that are much more rural and just don't have very much housing or business in them?

00:04:09 Scott Logan, Legal Director, Brodies LLP

That exactly the case. It's very much the case that it's not been economically viable for the operators to get into these areas. Obviously they all need power connections. They all need fibre connections as well to provide these networks so that all costs a lot of money in providing these to remote rural locations and now with industry and government funding the initiative to reach these hard-to-reach areas that should see an improvement. And Scotland will certainly benefit from that, given that there is poor connectivity in many of these areas in in Scotland.

00:04:51 David Lee, Host

And if somebody wants to put up a mast on your land, then how does that request come in and who makes it to a landowner?

00:05:00 Scott Logan, Legal Director, Brodies LLP

Typically a special site acquisition agent acting on behalf of one of the main mobile operators or infrastructures providers would make that request at the outset. That might just be an approach to take access to land to see if the land is suitable for hosting a telecoms mast and then going forward if it is a good location or possibly a good location. An owner can typically expect to receive a heads of terms proposal setting out what the operators proposing to install there, and the terms that are being offered for that.

00:05:39 David Lee, Host

And what are a landowner's options if that request comes in? What can they say?

00:05:45 Scott Logan, Legal Director, Brodies LLP

Well as well as Lucie mentioned, the operators have statutory powers under the electronic communications code, greatly enhanced power since the new code come in, however, the basic premise of the code is still the operators require the agreement of the owner to install and operate their equipment on land, but ultimately they do have recourse to lands tribunal to impose terms if agreement cannot be reached.

So whilst the operators obviously have these wide-ranging powers, it does not give them a carte blanche to do anything that they want to do. So there's no reason for an owner to accept the first offer that comes forward from an operator, you might improve your position through negotiation.

I would certainly always advise a landowner to carefully consider any approach from an operator, but if it's something that the owner is interested in taking forward, absolutely negotiate the terms and you get a better deal that way.

00:06:47 David Lee, Host

And so, Lucie, you're a landowner or a farmer, you get this request coming in - what's your advice to them as a as a kind of first step?

00:06:56 Lucie Barnes, Partner, Brodies LLP

I think the key is dialogue.

Scott and I have worked on these for a period now, and I think what we've seen is just the surprise. There's an element of surprise sometimes when an operator approaches a landowner and that can sometimes create a bit of sort of partisan position and that's really unfortunate. So what I would say is just dialogue. Even if you are surprised, even if it's perhaps something that you think, “No, that's not something I want,” do not ignore the correspondence when it comes in.

I think perhaps also a practical step can be to look at the local planning portal to see if perhaps the operator needs planning permission, and perhaps they've made some moves to make that application. Get yourself knowledgeable about what is happening. Don't ignore it, because the operators do have powers that they can utilise if they need to. Really open up those conversations early. Nobody wants to end up in a tribunal on these things, especially if an agreement can be reached and a negotiated compromise can be sorted out.

00:08:18 David Lee, Host

And I think I probably know the answer to this question Lucie, but would you advise landowners to get legal advice at an early stage as well?

00:08:24 Lucie Barnes, Partner, Brodies LLP

I mean seeking expert professional advice is important.

Obviously from drafting and negotiating a telecoms agreement, you need expert legal advice there. You also will need telecommunications agent advice and valuation advice as well.

00:08:46 David Lee, Host

OK, so Scott, you've already touched on this that not everybody will be delighted when this comes in.

Some people might bury their heads in the sand - Lucie said, don't do that, obviously - so if the landowner is not very happy and they do enter into a dialogue, but that dialogue is not getting very far - what are the exact powers that the operators have to force them to put up a mast and do they have to reach a certain bar in terms of you know that “we are doing this because...?”

00:09:13 Scott Logan, Legal Director, Brodies LLP

So as we've covered already the code that came in in 2017 greatly enhanced those rights and does give the operators power to acquire rights to install their masts or other telecoms equipment if agreement cannot be reached. There is a procedure layer that requires notification to be given but at the end of that period, if an agreement is not reached, the operator can then apply to the lands tribunal to seek imposed rights.

There is a test to be met obviously and it falls into 2 two different parts.

Firstly the prejudice caused to the owner or occupier can be adequately compensated by money.

And then secondly the public benefit and having access to communications networks outweighs that prejudice.

So in most cases the access tests will likely be met and so the operator will be able to get their mast, but obviously there will be exceptions.

For example, in the University of Arts London case, the university was able to resist the imposition of code rights there due to the significant reputational and litigation that risks that would have arisen from being unable to perform its obligations under a development agreement.

Looking at site specifics may also be site specific reasons why undue prejudice would be caused or unquantifiable prejudice would, because in those circumstances you might be able to resist the imposition of a masts, if there are particular reasons against that.

There's also protection for owners that are intending to develop their land. So, the tribunal cannot impose these rights in favor of the operator if it's satisfied that the owner intends to redevelop the land and could not reasonably do so, if the if the rights for the masts were granted. That very much is the case that it would fall on the owner to satisfy the tribunal that it's a genuine and settled intention to redevelop. But if that could be established, then that that would be a good ground to defend any application by the operator.

00:11:27 David Lee, Host

OK, and let's assume it's going ahead whether it's willingly or unwillingly, what can a landowner expect to be paid for allowing a mast to be sited on their land, and how is that worked out Scott?

00:11:41 Scott Logan, Legal Director, Brodies LLP

Back to the new code that was introduced in 2017, that brought in a new basis of valuation.

The rent is still calculated on a market value basis, but it is subject to a number of assumptions and the key one here is the "no network assumption” which disregards the telecoms use, so that has led to a significant reduction in the rents being paid for mast sites.

Before the new code we're typically looking at around the five to £6000 per annum for a green-field site. Now we are sort of in the region of £750 to £1000 per annum. We've had a few cases coming through the tribunals both North and South of the border as the Scottish case that determines the rent of 1500 pounds for the first year where during installation there's obviously a greater impact on the owner and then £600 per annum after that. And a subsequent English case determined the rent to be £750 per annum, or rather, it would have been £750 per annum, but for the proximity of residential properties, which upped it in that particular case.

00:12:58 David Lee, Host

OK, and Lucie, that doesn't sound like a huge amount of money, particularly if you've had to pay professional fees to all the different individuals you've mentioned.

Will the landowners professional fees be covered at?

00:13:14 Lucie Barnes, Partner, Brodies LLP

The wording is "all reasonably incurred costs" should be covered and will be covered by the operator and the view there being that the landowner should not be left out of pocket. That's the sort of language that we've seen in one particular English case that dealt with the this this issue of incurring costs.

It's interesting because we sort of see in these situations, when operators approach the landowner and they say "we'd like to do this and we will pay you the sum of X in respect of your legal costs and valuation costs and the like," that sum is, you know, £1500 for example, but that can very quickly jump if it gets into a negotiated document that goes back and forth on a number of terms. £1500 isn't going to cover it.

We did have this recent English case where the judge in in the upper tribunal said no, it is all reasonable, all reasonably incurred costs, it's not a fixed sum, and so long as the landowner can justify the costs that have been incurred, then arguably they will be paid by the operator.

I think that the challenge very much comes around is - what is reasonably incurred? In that particular case there was very much a question mark about having people on site. The landowner having people on site that were instructed by them to sort of watch and oversee and so you have to, from the landowners perspective, they very much have to be ensuring that what is being heard will be viewed as being reasonable.

00:14:59 David Lee, Host

OK, and do we often get - not quite into a fist fight - but do we get into pretty difficult territory sometimes when you know landowners are unhappy in the first place, there's arguments about money?

Have you seen quite, you know, bitter disputes over telecoms masts at all?

00:15:16 Lucie Barnes, Partner, Brodies LLP

Yeah, I think it's that shock factor. I think it's because the operators have these powers now and it is incumbent on them to roll out this infrastructure. That is what government is telling them they have to do and they are responsible for financing that, they are commercial businesses too, they're doing their thing in the industry, but it is incumbent on them to give rural areas greater access to healthcare through the 5Gnetworks, greater access to education.

This is a societal issue and they are sort of responsible for rolling it out.
They don't make the same money from us making telephone calls and text messages because we don't work in that way anymore. Consumer behavior has changed, so they've had to monetise the data aspect of it, and that's why we pay our monthly subscriptions and you get your calls and your texts all rolled in for free because they're not making any money from the apps, so they that's how they have now had to monetize it. But they are ultimately responsible for rolling out this very expensive infrastructure.

And so it is incumbent on us to try, when those negotiations are happening, you know there's a duty on the operator to sort of act reasonably. Everybody needs to be sort of coming together to make sure that the telecoms agreement is as tight as it needs to be, and brings that balance of rights and responsibilities for both parties.

And I think it's as landowners - just to sound like a bit of a peacemaker - but just try and you know, sort of step back from that shock factor and really try not to have an entrenched position because it can be a long process to negotiate these things.

00:17:23 David Lee, Host

OK, and Scott, you touched on this earlier on about landowners not jumping in and not necessarily accepting those standard terms. But as Lucie said, there's that balance to draw between understanding their own rights, but their responsibilities to the wider community and society.

00:17:41 Scott Logan, Legal Director, Brodies LLP

Typically the operators will put forward their standard terms and as you would expect the standard terms are weighted in favor of the operators that gives them powers that they need to install and operate their equipment and often, unfortunately, the standard terms are lacking in a number of areas from a from a landowner's perspective, so the key is very much negotiate those terms.

If from a landowner's perspective, you want to ensure that when access has been taken to your land there there's appropriate provisions in there about you know who they should contact? How much notice has to be given?

Obviously, if vehicles are going to be taken onto the land you want to have advanced notice of that and really understand what what's going on in your land. One of the alternatives to the operator standard terms is infolink templates, which is a suite of documents that have been made available fairly recently, and that strikes a much better balance between the opposing interest there and a good starting point for negotiations. And actually they take up from both sides has been encouraging there.

So the operators are, in my experience, willing to sign up to that as that kind of starting point for negotiations, but again, just whatever form of document is used, it's important to negotiate the terms and ensure that the terms are fair to both parties. So that means giving the operators sufficient flexibility to access and operate their equipment, but again, with appropriate checks and balances in place to protect the landowner.

00:19:29 David Lee, Host

And as you talked about earlier on Scott, you know we are improving the quality of telecommunications all the time. From 3G to 4G to 5G and so on - masts come to the end of their natural life as well. What happens then? What about when the master agreement comes to an end? What should the landowner be doing then? Can they ask for the equipment to be removed?

00:19:51 Scott Logan, Legal Director, Brodies LLP

Well it is very important that landowners are aware from the outset of the statutory protection afforded to telecoms masts, which makes it very difficult to get the masts removed when the agreement comes to an end or indeed at any point after that. So regardless of the agreement reaching its expiry date, the telecoms could rights continue in a statutory footing until terminated in accordance with the telecoms code. And the circumstances in which master agreements can be terminated are very limited, so they can only be brought to an end at the end of the contractual term or after that a minimum of 18 months notice is required, and then the termination grounds are very limited as well.

So as only where the operator or tenant under the agreement has been in substantial breach or persistent delays in making payments. Where they're no longer entitled to code rights because those access tests we discussed earlier and no longer met.

And finally, again, there's a kind of redevelopment termination ground - so if the landowner requires the land back for redevelopment blend, that would constitute a termination ground it is possible when negotiating agreements to include a lift and shift provision. So that's just a provision that allows you to say to the operator, “actually I need you to relocate the mast somewhere else in my property,” if it can be reasonably accommodated elsewhere to allow an alternative use of the land to be made. Equally typically leases will be granted for a minimum of 10 years, quite often longer. So if there's any development potential or aspiration within that period, then the landowner should be asking for a break option on 18 months notice. If he requires the land back for redevelopment purposes.

00:21:53 David Lee, Host

OK and finally Lucie, you know it's a complex area, there's a lot of legislation covering it. As you say, there's that shock factor of the telecoms company knocking on the door or sending the e-mail, saying that this is going to happen, what's your advice as a lawyer to clients you represent in this area?

Is it about keeping a cool head and understanding that balance of rights and responsibilities?

00:22:20 Lucie Barnes, Partner, Brodies LLP

Yeah, I think you know that's absolutely it.

In this scenario, nine times out of ten, it ends up with a telecommunications agreement coming into existence. But if that is not what you want, then you need to have that full suite of options be laid out to you and to see if that can be achieved. We, as I've touched on before, we have those duties and responsibilities.

And this is an issue right across the UK and there's lots of people who are in this in this moment and that is you know hugely more common than it was a couple of years ago and I think if, as I say, if you are in a situation where that is happening to you need to know what your options are.

If it's going to be a telecommunications agreement at the end of that, then so be it but if it's not something that you want there are the tests to be met. Then you need to know what your options are available to you.

00:23:30 David Lee, Host

Thanks very much to Lucie Barnes and Scott Logan for those great insights today.

It's part of the “what do I do if...?” series brought to you by Podcasts By Brodies, where some of the country's leading lawyers and special guests share their enlightened thinking about issues and developments in the legal sector and their impact on the wider society and economy.

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