One case illustrates how telecoms companies can utilise the extensive powers given to them under the Electronic Communications Code to the detriment of a landowner’s business.

For a number of years, Gravesend Council, as the landlord of a block of flats, had been anxious to undertake repairs to the roof of the building to prevent water from leaking into the flats below, but was unable to reach agreement with the telecoms firm On Tower whose equipment had to be moved to enable those works to be carried out. Initially the operator appeared prepared to remove it to allow roof repairs to take place but, after scaffolding was erected, the operator reneged.

The Council therefore gave notice terminating its tenancy on 30 June 2022. On Tower was entitled to apply for a new tenancy and did so in June 2022. The Court issued the claim on 12 July, returning it to On Tower's solicitors for service on the Council, but On Tower failed to effect service within the statutory timescale. Having sought an extension of the period, On Tower used its wide statutory powers under the Electronic Communications Code requiring the Council to enter into a new Code agreement. The Council responded with a notice under the Code requiring On Tower to remove its apparatus from the roof of the building to enable repairs to take place.

In February 2023, On Tower’s claim for a new lease under the Landlord & Tenant Act 1954 was dismissed by the Court. On Tower made no attempt to appeal against that decision. With no new agreement having been entered into, On Tower however referred its request for new Code rights to the tribunal. The First Tier Tribunal refused the Council’s application for the application to be dismissed and held that an operator, whose right of renewal under the 1954 Act had lapsed, was entitled to pursue a claim for new rights under the Code.

That decision was appealed to the Upper Tribunal, which had to decide whether an operator, who has exhausted options to secure a new agreement under the 1954 Act, can then pursue rights under the Electronic Communications Code. The Tribunal found in favour of the Council, describing the suggested operation of the Code by On Tower as resulting in a “truly absurd state of affairs”.

This is not the only case where operators have prevented or delayed redevelopment. On Tower delayed the redevelopment of the Kenton Road telephone exchange in Harrow, Greater London, by disputing the validity of notices. In Scotland, Arqiva delayed part of the redevelopment of Forth Valley College at Falkirk by some five years as it resisted removal of apparatus from a redundant building.

The Code is a statutory scheme of rights and obligations which enables operators to enter land against a landholder’s wishes, in order to install, erect, maintain and use any form of electronic communications apparatus together with any ancillary equipment for the purposes of an electronic communications apparatus. It operates in parallel with any contractual arrangements and may in many instances override any agreement.

The central tenet of the Code is that it confers upon an operator the right to come onto land, if necessary, by order of the Court against the will of the site provider, to exercise ‘Code powers’. The High Court has held that the statutory powers to compel a landowner to accept a telecommunications mast are akin to compulsory purchase powers and should only be used as a last resort.

The Code has safeguards to protect landowners, such as a requirement on the Tribunal to award terms that ensure the least possible loss and damage is caused to a site provider and those on the land. The Tribunal cannot make an order if the site provider intends to redevelop the property or any neighbouring land.

The issue is that operators are too ready to use their powers under the new Code and resort to the courts rather than address the issues raised by their proposals on a consensual basis.

Under the 30 odd years of the old Code, some 52,000 radio mast sites were rolled out across the UK and in only seven cases were the courts were involved. The new Code has proved very different; the operators with their new-found powers have readily resorted to the courts resulting in some 900 cases being referred to the Lands Tribunal in England & Wales, over 200 in Scotland and 100 in Northern Ireland.

Read the latest news and views from our experts in our Autumn/Winter edition of Energy Matters.