Telecoms law: new revisions
5 July 2018
Following recent revisions to telecoms law, Michael Watson warns asset owners to know how they can deal with telecoms equipment on their properties
Telecoms law has recently been altered by the Digital Economy Act 2017 and the new Electronic Communications Code, which came into effect on 28 December 2017. As phone masts and telecommunications apparatus are found on many properties, the owners, investors and developers of these along with their surveyors need to be aware of the changes, which could affect the value of their assets.
Anyone owning or considering purchasing property with telecommunications equipment such as fibre-optic cables or mobile phone masts in place should carefully consider whether the restrictions of the new legislation on removing apparatus will have an impact on their future plans. The legislation also gives telecommunications operators the potential to impose apparatus on property owners against their will, backed by the threat of court action if they refuse.
Specialist professional advice is thus essential in managing the risks when dealing with property and electronic communications equipment, especially in the following areas.
Security of tenure
One of the 1st issues that should be considered before permitting electronic communications equipment on your property is the possibility that at some point it may be necessary to secure its removal. You therefore need to know how to do so, at what cost and how quickly.
If equipment does need to be removed then this could be costly and time-consuming
A variety of agreements are used to permit the installation of communications apparatus on land and property, but the provisions of the new legislation supplement these by providing additional rights in favour of the network operators. Property owners seeking to remove electronic communication apparatus will also need to be prepared to satisfy statutory tests and evidential requirements to obtain a court order for its removal. If equipment does need to be removed then this could be a costly and time-consuming process, although this can be mitigated with specialist advice and careful planning.
Removal of apparatus
Under the new legislation, once the fixed term of an agreement comes to an end the right to retain the equipment on the property will continue until the site provider serves a minimum of 18 months’ notice, specifying 1 of several grounds for terminating the use of the site.
Following this, the telecommunications operator can serve a counternotice and then take the property owner to court to seek the right to remain. The time and cost associated with this process could lead to serious delay and expense, so they should be factored in to any development appraisal.
The rights that are given to telecommunications operators under the code cannot be registered and therefore the presence of equipment with such rights will not be revealed by property searches. Some of the equipment that will benefit from code rights can be very small or may even be hidden, so it is important that surveyors are able to recognise and report on such apparatus. Any property owner instructing a surveyor should consider specifically including a requirement to report on the presence of such equipment and the impact it may have on value.
Planning law and in particular the specific permitted development rights for the installation, alteration and replacement of telecommunications apparatus must be taken into consideration.
The rights over property granted to network operators under the code are significant and not always immediately apparent, and therefore anyone acquiring property or considering granting rights for telecommunications apparatus should be careful to establish precisely what is involved, what rights will attach to it and whether it might have a detrimental impact on the property’s value.
Anyone receiving a formal notice under the Electronic Communications Code from a telecommunications operator should seek specialist advice before even acknowledging receipt.
Michael Watson is a partner at Shulmans LLP