Legal Q&A: Code compliance conundrums
I have a telecoms mast on my land installed by a mobile telephone company. The agreement is not due to expire for another three years but it has been excluded from the protection of the Landlord and Tenant Act 1954 and I am hoping to redevelop the land at that point. How should I go about ensuring that the mast is removed at the end of the agreement?
The apparatus installed by the company is probably protected by the new Electronic Communications Code and you will therefore need to follow a specific process – possibly involving tribunal proceedings – in order to terminate the agreement. However, you can help the mobile operator to work within your timetable by giving it as much informal advance notice as possible of your plans.
Your agreement is probably protected by the new Code, which was introduced by the Digital Economy Act 2017, although you can check the register of Code operators on Ofcom’s website. For an overview of the new Code, see “Code red for landowners?”.
As that article suggests, the new Code tries to set out a clearer process for landowners who want to redevelop their land, but there is a potentially lengthy termination process to follow. As well as this formal termination process, it is worth thinking about giving as much informal advance notice as possible of your plans to the mobile operator in order to assist it in cooperating with your preferred timetable.
To terminate an agreement under the new Code, you will need to serve a “paragraph 31” notice on the mobile operator. This must give at least 18 months’ notice but cannot end the agreement before its contractual termination provisions allow.
The paragraph 31 notice must specify one of a number of available statutory grounds for removal. These include an intention to redevelop all/part of the land or any neighbouring land and that you could not reasonably do so unless the Code agreement comes to an end. There are various requirements for the notice set out in the new Code and there is a specific form and other guidance available from Ofcom’s website.
Once notice has been served, the operator must serve counter-notice within three months if it wishes to protect its entitlement to try to remain on site. The operator is then required to apply to the First-tier Tribunal to protect its ability to remain on the land and it could take some time for that application to be heard.
However, if you establish any one of the statutory grounds for termination at the hearing, the tribunal should then order the termination of the Code agreement.
If you fail to prove your case for termination, then the tribunal has a menu of orders which it can make – eg to continue the existing Code rights or modify the existing Code agreement.
If there is either no counter-notice or no application to the tribunal, then the Code agreement will come to an end on the date provided for in the paragraph 31 notice. However, the 18-month notice period will obviously still apply.
If the mobile operator doesn’t cooperate with my desire to redevelop the site even after I terminate the agreement, can I simply remove its apparatus and start my works?
No. If the operator does not voluntarily remove its apparatus, then you will need to follow an additional notice process under the new Code in order to be entitled to remove it. This may again necessitate tribunal proceedings, either to require the operator to remove its apparatus or enable you to do so.
Once termination is achieved under the new process, there is then a further process to achieve removal of apparatus if the mobile operator does not remove it voluntarily. If you do not follow this process, then the operator may well seek an injunction to prevent you from removing its apparatus and/or claim damages.
Paragraph 40 of the new Code requires a landowner to give a “reasonable” period of notice to the operator for completing the works required to remove its apparatus and restore the land. Again, there are various requirements for the notice set out in the new Code, as well as a specific form and guidance available on Ofcom’s website.
There is obviously no guidance yet on how the tribunal is likely to assess the “reasonable” period of notice required, although it should arguably take note of the fact that the operator will already have had 18 months’ notice by the time any removal notice under paragraph 40 is served.
If the parties are unable to agree terms for apparatus removal within 28 days beginning with the day on which the paragraph 40 notice was given, you will be entitled to apply to the tribunal for:
- an order requiring the operator to remove its apparatus; or
- an order enabling you to sell the apparatus.
However, paragraph 40(8) expressly prevents the tribunal from making such an order if the operator applies for a new Code agreement to be imposed on you and the application has not yet been decided.
Assuming that the tribunal orders the removal of the apparatus, it has the power to allow you to:
- Remove or arrange the removal of the apparatus
- Sell any apparatus removed
- Recover the costs of the removal/sale from the operator
- Recover the costs of restoring the land from the operator
- Set-off the proceeds of sale against the above costs
The tribunal may also order the operator to pay compensation to you for any loss or damage suffered as a result of the presence of the apparatus on the land during the period when you were entitled to require its removal, but were unable to exercise the right. Hopefully, this will encourage the operator to vacate voluntarily.
Sponsor Licence Compliance: Key considerations & how to be audit ready
Join us for the third in our series of mini webinars on post Brexit immigration about sponsor licence compliance.
The Future of Property Careers
Join to our panel discussion and Q&A with industry leaders on the range of opportunities within the property and construction sector.
New tax on property developers - consultation paper published
The government published a consultation paper on the design of the new residential property developers tax.
Oliver Park writes for LexisPSL Property Disputes on liability for costs of repair
Oliver considers the implications of the decision in City of London v Leaseholders of Great Arthur House.
Procuring modular housing: Is MMC becoming mainstream?
Is Modern Methods of Construction becoming mainstream? Read what it means for Development and Procurement here.
Dual class share structures: how do they work and what are the pros and cons?
Dual class share structures allow a shareholder, for example the founder, to retain voting control over a company.
Q&A: Talking the telecoms talk
Georgina Muskett and Jonathan Wills answer queries on Electronic Communications Code agreement.
Property Patter: Navigating the complexities of Pharmacy Property
Pharmacy property is a specialist area which contains many traps for the unwary.
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Linking ESG and Executive Pay
How does a business go about embedding a focus on strong ESG performance into the structures and culture of its organisation?
National Security and Investment Act granted Royal Assent
The Act establishes a new regime for the review of mergers, acquisitions and other transactions that could threaten national security.
Recent Trends In Firewall Legislation: BVI, Bermuda And Gibraltar
Charles Russell Speechlys advises Waverton on acquisition of Cornerstone Asset Management
Established in July 2010 and with offices in Edinburgh and Glasgow, Cornerstone offers wealth management and financial planning advice.
What do the new Debt Respite Scheme Regulations mean for Landlords and Tenants?
This will provide legal protection from creditors in the form of either a breathing space or a mental health crisis moratorium.
Charles Russell Speechlys promotes five to Partner
The promotions are effective 1 May 2021 and are accompanied by one Legal Director and 15 Senior Associate promotions.
Risk allocation in commercial leases: the High Court considers rent suspension, insurance and frustration arguments
Read our summary of the full judgement on the latest Covid arrears case.
Charles Russell Speechlys boosts private wealth offering with the hire of an international tax team
Robert Reymond will be joined at the firm by Leigh Nicoll, Emma Tyrrell and Oliver Cooper.
Proposed Takeover Code Amendments – Key Changes
The Consultation Paper has now been followed by a corresponding response paper which made certain modifications to the initial proposals.
Building Back Better: Future Gazing
What’s next for the hospitality industry post-pandemic?
Building Back Better: Re-examining your proposition
Why hospitality businesses should re-examine their proposition now