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

Why might you be asked to put a telecoms mast on your land?

Extending mobile coverage to "hard to reach" areas is a key priority for government. The Shared Rural Network is picking up pace and will see a £1bn investment from government and the four mobile network operators to eliminate so‑called "not spots" – areas where there is currently no coverage from any operator. An enhanced mast network will be needed to deliver this and it is becoming increasingly common for an approach to be made to put a mast on privately owned land.

What are my options if I am asked to agree to this?

Designated telecoms operators have statutory powers under the Electronic Communications Code. The basic premise of the Code is that operators require the agreement of the owner to install and operate their equipment on land, but with recourse to the Lands Tribunal to impose terms if agreement cannot be reached. Whilst operators undoubtedly have wide ranging powers, there is no reason you should feel compelled into accepting an operator's initial offer and it is usually the case that an improved offer can be secured through negotiation.

What powers do operators have?

The Code gives designated operators powers to compulsorily acquire rights to install and operate telecoms apparatus on land where agreement cannot be reached. The procedure requires notice to be given in advance setting out the rights sought and the proposed terms of the agreement. If an owner does not agree to confer the rights in the terms sought within 28 days, the operator can then apply to the Lands Tribunal for court imposed terms. The Tribunal may impose terms if it is satisfied that two access tests are met:

• the prejudice caused to the owner occupier can be adequately compensated by money; and
• the public benefit in having access to communications networks is likely to outweigh that prejudice. 

The access tests will likely be met in most cases, but there will be exceptions. There is also protection for owners intending to develop their land. The Tribunal cannot impose rights if it is satisfied that the owner intends to redevelop and could not reasonably do so if an order were made.

What can I expect to be paid?

The Code introduced a new basis of valuation intended to reduce the rents being paid under telecoms agreements. Whilst consideration (rent) is to be based on market value, this is subject to a number of assumptions, the key one being the "no network" assumption which disregards the telecoms use. This has led to a significant reduction in the rents being paid for mast sites. In the Scottish case of Fotheringham, the Tribunal set the rent at £1,500 for the first year, when the imposition on the owner would be greater, and £600 for the subsequent years following installation. A similar approach was followed in the English case of On Tower v. Green where a rent of £750 per annum would have been considered appropriate, but for the proximity of residential properties which justified an increase to £1,200 per annum in that particular case.

If you are willing to proceed on a voluntary basis, there is often scope to secure better financial terms and include greater protections within the agreement through negotiation. Whilst operators are reluctant to significantly increase the rent beyond that which the Tribunal would impose, it is common to agree up front incentive payments for completing the lease quickly.

What happens when an agreement ends?

It is important that owners are aware of the statutory protection afforded to telecoms masts which makes it very difficult to get the mast removed when the contractual term ends or, indeed, at any point after that. Regardless of the agreement coming to an end, the Code rights continue on a statutory footing until terminating in accordance with the Code. The circumstances in which mast agreements can be terminated is very limited and, in those circumstances, the agreement can only be brought to an end at or after the contractual expiry date on giving a minimum of 18 months' notice.

Leases of mast sites will typically be granted for a term of at least 10 years and, if there is any development potential or aspiration within the initial contractual term, the lease should contain a break option allowing the owner to terminate on 18 months' notice if the land is required back for redevelopment. It may also be appropriate to include a lift and shift provision allowing the apparatus to be relocated at the operator's cost if it can reasonably be accommodated elsewhere.

It should be noted that termination of the agreement is only the first step in a two stage process and further procedures may be required to enforce removal of the apparatus.

If you have any concerns or questions about an approach to put a telecoms mast on your land, please do not hesitate to get in touch with our Telecoms Team or your usual Brodies' contact.