Mobile Phone Operators - Gift Horse or Trojan Horse? Part 2

Given the response to our last technical bulletin on the proposed Government changes to the Electronic Communications Code, it is clear that many land owners and organisations have valid concerns regarding the future costs in managing the security of their sites and occupants, be it a school or other building. You will not be able to prevent sharing or subletting. More contractors will visit your site. You need to have a robust access process in place now.

The foreword to the draft Bill states unequivocally that one of the reasons for the changes is to drive down rents. Savings of 1 BILLION POUNDS are anticipated. It is entirely possible that land owners could soon find themselves out of pocket. In effect, you could be subsidising the mobile phone operators.

Some have commented that the right to terminate an agreement for redevelopment is not as straightforward as it first appears.

The new mechanism now firmly leans in favour of the operator remaining in situ, even if the owner wishes to redevelop. If the operator receives valid notice to relocate within 18 months but serves a counter-notice within 3 months to stay on the site, the court may make an order for the operator to remain if “the prejudice to the person is capable of being adequately compensated and the public benefit in making the order outweighs the prejudice to the relevant person.“

The test applied here is that the court must have regard to the public interest in access to a choice of high quality communications services.

That’s fine you say, as you will be “adequately compensated”- but will you? The compensation provisions are to be linked to compulsory purchase- effectively deflating the value of the land upon which the operator sits. Compensation includes expenses, diminution in the value of the land and costs of reinstatement.  But how do you measure diminution in value of the land?

Further “loss and damage caused” is to be minimised, but it appears clear that the legislation anticipates that land owners will suffer loss and damage.

Bear in mind that operators will be allowed to share and sublet the site and assign rights to another Code Operator (100+ in number). Therefore, if the site is already being shared by other Code operators providing such “high quality communication services” it could prove extremely difficult to persuade a court that the public are not being denied access to “a choice of high quality communications services”.

Landlords should now also consider ensuring that any tenants with rights to assign, sublet or share are specifically excluded from being able to do so with a Code Systems Operator as the operator will have rights to remain even after the tenants lease comes to an end.

If you have a telecommunications operator on your land at present, do not delay - check your lease now or give us a call.