Telecoms operators’ activities and installations are regulated by two main statutes; the Landlord and Tenant Act 1954, and the Telecommunications Act 1984 (as amended by the Communications Act 2003).
The Landlord and Tenant Act 1954
This act regulates commercial lettings and grants “security of tenure” to business tenants occupying property under a lease. Unless such leases are “excluded” from the Landlord and Tenant Act 1954, the landlord will not be able to recover its property at the end of the lease term, except on very specific grounds (development, demolition, requirement of the premises for its own use etc), and the tenant will be entitled to a new lease on the same terms as the old (except for updating).
Most telecoms agreements to date are not called leases, but may be leases nonetheless. Each legal agreement is unique and professional advice should be sought to protect your interests.
The Telecommunications Act 1984
This is even more dangerous for landowners. Schedule 2 of the Act gives an operator the right to go on to and remain on an owner’s land if required for the purposes of its network, whatever the owner wants (“code powers”). These powers kick in from the moment an operator is allowed onto the land by any form of writing (it need only be a letter). Once on, if they do not want to leave, they cannot be removed except by order of the court. Any written agreement (such as a lease) will set out the terms on which the operator’s rights should be exercised, but the operator can apply to court for an order to expand on those rights if required, potentially resulting in more equipment being installed, more land used, or the term of the lease extended.
Negotiations can be entered into and amicable solutions reached out of court, but the operators are exercising “code powers” more and more and professional advice is imperative.
The Communications Act 2003
This has extended the Telecommunications Act 1984 by effectively entitling a very much wider group of companies to exercise Code Powers, than was envisaged by the 84 Act. Under the Communications Act 2003 anyone who has a network, or who provides the infrastructure for such a network, can apply for such powers should any part of that network be at risk, either for individual installations, or for the network as a whole. Around 80 organisations have done so to date; many more are eligible and could do so in the future. Visit www.ofcom.org.uk for a list of the organisations.