Developments in the Electronic Communications Code Signal Bad Times For Landowners

Landowners are being warned to expect a continued rough ride in the future as the impact of the first year of a new code regarding the use of telecommunications equipment on land is being felt.

With government commitments to a continuing rollout of more and faster telecommunications coverage, including the forthcoming 5G services, the introduction of the new Code in December 2017 was seen as essential as means to foster greater investment by operators.

Under the Code, telecommunications operators benefit from further powers to install equipment and new rights to upgrade and share apparatus – widely considered to be at the disadvantage of landowners who have previously benefitted from relatively generous land payments.

Utilities experts at Bell Ingram say the 12 months since the introduction of the Electronic Communication Code has seen a general lack of activity in terms of new deals or lease renewals as the telecoms operators seek to exercise their new, stronger, powers and the landowners continue to resist the move.

But Neal Salomon, Bell Ingram’s Partner in Utilities & Renewables, said key decisions in the first cases to challenge the Code are showing clear outcomes in favour of the operators – which is likely to have serious financial implications for landowners.

The first of the cases – Cornerstone Telecommunications Infrastructure Ltd V The University of London [2018] – concerned particularly the rights of an operator to take access to land for surveys. The right to undertake surveys is not explicitly included within the rights afforded by the Code and therefore the landowner had refused a request for access.

However, the outcome of the case was decided in the operator’s favour, with the judge noting that the intention of the Code was to facilitate and to ease the rollout of communications networks and that this must have included an implicit right to undertake surveys.  

Neal said: “The case was not specifically dealing with valuation matters, but the judgement did also refer to the fact that the value of rights under the Code is expected to be ‘nominal’, which will again come as unwelcome news to landowners and strengthen the negotiating position of the telecommunications companies.

“This case has closed one of the potential loop-holes that a landowner may have looked to benefit from in seeking to capitalise from the approaches of a telecommunications company. It is likely that this case will be considered as precedent in any future dispute taken before the Upper Tribunal and may have an impact on the assessment of costs.

“A landowner facing a similar situation would therefore be advised to exercise caution before deciding to prevent access.

“It is yet to be seen how futures cases are decided – or indeed if this recent case is appealed – but it seems likely from the tone of the judgment that future decisions to clarify other elements of the Code are more likely be decided in the favour of the operator than the landowner.

“As the interpretation of the Code continues to become more clearly defined by the decisions of the courts it is now more important than ever that those dealing with telecommunications matters take the best possible advice from experts such as Bell Ingram.”

Bell Ingram has a team of specialist expert valuers that can assist in all telecommunications matters. The team has acted as expert witnesses in recent cases involving telecommunications valuations and has advised on national rates to be adopted for national fibre optic networks.

Head quartered in Perth, Bell Ingram manages over 500,000 hectares across the UK on behalf of public, private and corporate clients.

It has built a name as one of the UK’s leading providers of land management services for the utilities and infrastructure sector.

To find out more, visit: https://bellingram.co.uk/

Published on 10th December 2018