Bulletins | October 3, 2019

Telecoms masts and a landowner’s right to redevelop

While the new Electronic Communications Code (introduced by the Digital Economy Act 2017) is intended to ensure that telecommunications operators are able to provide the public with “a choice of high quality electronic communications services”, it does so at the expense of landowners.  Not only are the operators entitled to apply to the Upper Tribunal (Lands Chamber) for an order imposing an agreement to install equipment on the land of a reluctant owner, but the rent payable under the agreement will reflect the value of the land for other uses, but not for what is likely to be the more valuable use for the purposes of an electronic communications network.  Therefore, it is unsurprising that a landowner may be reluctant to have telecommunications equipment installed on its property.

The grounds for resisting an agreement being imposed are limited, but there is provision that an agreement will not be imposed if the land owner intends to redevelop all or part of its land or any neighbouring land and could not reasonably do so if the order imposing the agreement were made.  However, it has been made clear by the Tribunal that a scheme devised purely as an attempt to defeat a claim for Code rights will not succeed.

In the recent case of EE Ltd and Hutchison 3G UK Ltd v The Mayor and Burgesses of the London Borough of Islington [2019] UKUT 0053 (LC), the parties had been unable to agree terms for new leases of existing telecommunication sites and the operators applied to the Tribunal for Code rights to be imposed.  The landowner sought to oppose the application on the basis that it intended to redevelop the land.  The proposed redevelopment involved replacing the operators’ masts with taller masts and to install fixed access broadband, to enable the landowner’s estate to benefit from a better broadband service, as well as the wider choice of mobile service. The landowner’s estate comprised some 5,600 acres and included farmland, forest, some housing, two hotels and other commercial premises with about 250 people living or working on the estate.  Planning permission had been obtained in respect of one of the sites and agreement in principle reached with the provider of a superfast broadband service to be installed for the estate.

However, while the landowner was able to establish that, objectively, it had the intention to redevelop, having obtained planning permission and having sufficient resources to carry out the scheme, it did not pass the subjective test of a firm, settled and unconditional intention to carry out the redevelopment. There was doubt as to whether the scheme was necessarily the way to solve any problem of broadband on the estate. Having analysed the figures, the Tribunal concluded that the scheme would be unprofitable and considered it to be wholly implausible that the landowner would waste resources on it.  Further, the Tribunal concluded that the landowner’s claims were conceived in order to defeat the claim for Code rights and, therefore, the ground of opposition failed.

The decision reflects the position under Landlord and Tenant Act 1954, in the case of a landlord of business premises opposing the grant of a new tenancy on the ground of redevelopment. It was established in the recent case of S Frances Ltd v The Cavendish Hotel (London) Ltd [2018] UKSC 62 that an intention that was conditional on whether the tenant chose to assert its claim to a new tenancy was not the fixed and settled intention required by the 1954 Act and as a consequence, the landlord’s opposition failed.