As many will know, this year the Government published proposals for a revised Electronic Communications Code, governing the relationship between telecoms providers and landowners. Historically, many landowners were caught out by the introduction of the original Code and recent proposals for its revision look set to tip the balance of power ever further towards the operators. Two recent developments are also worth practitioners noting- changes to permitted development rights and the upgrading of the emergency services network.
Changes to permitted development rights for electronic communications code operators:
The Town and Country Planning (General Permitted Development Order) (England) (Amendment) (No.2) Order 2016 came into force on 24 November 2016 and amends the law on permitted development rights for electronic communication code operators.
Permitted development rights allow for a deemed planning permission for certain types of development and changes of use and planning permission is deemed to be granted without the need for a planning application process. The latest Order provides for deemed planning permission to be granted for certain types of developments that are carried out by electronic communications operators “for the purposes of their network on land controlled by the operator or if it is in accordance with the Code”. The Order makes the following changes:
- Emergency Development: The period of time in which land can be used in an emergency has been extended to 18 months. However, any equipment installed as a result of the emergency must be removed at the end of the relevant period.
- Mast height: The height of masts that can be installed on unprotected land has increased to 25 metres (20 m for a highway), but approval from the local planning authority is required.
- Altering/replacing masts: If altering or replacing existing masts on unprotected land, deemed permission will be given for masts with increased heights of 25 metres (20m on a highway).
- Building based apparatus: No limitations will apply to the installation, alteration or replacement of small cell systems on buildings that are not houses or within their curtilage. In respect of the installation, alteration or replacement of antenna on a building other than a mast, previous limitations have been lifted where the building is over 30m high. However, one of the conditions is that the siting of building-based apparatus must minimise its effect on the external appearance of the building as far as possible.
Whilst an increased mast height may now be permitted in terms of planning, it is important to note that this is often a bone of contention for landowners. Most operators will argue the increase in height is required to assist them in providing the best coverage across the network, such as being above the height of tree lines, but most landowners will express concerns about the visual impact, particularly in circumstances where there is an existing mast of a lower height which the operator is seeking to increase.
Emergency Services Network:
Practitioners should be aware of the National Audit office’s recent report on the proposals to upgrade the communications network for emergency services. The Government is currently looking to upgrade the radio system used by the police, fire and ambulance services called “Airwave” (an expensive handheld or vehicle mounted device with poor data capabilities) and replacing it with the emergency services network (ESN) when the current contract expires.
The current plan is for emergency services to start moving on to the existing 4G network in September 2017, with the target for completion being December 2019. It is argued ESN will save money by sharing the existing commercial 4G network with better mobile data capabilities. It is understood that contracts have already been awarded to KBR, Motorola and EE, with others to follow.
It is likely there will be technical challenges in delivering such a large, country-wide project within the tight timescales envisaged and operators such as EE will need to ensure good coverage and resilience of the 4G Network for this to be achieved. Protocols will also need to be agreed to give emergency services personnel priority over commercial users of EE’s network. Whilst the emergency services will not have their own contractual arrangements with ESN, they will have an arrangement with one of the operators such as EE. As a result, many practitioners have seen operators becoming increasing resilient when negotiating provisions within telecoms leases which restrict licences being granted to third parties, as operators seek to reserve their position to provide emergency service network coverage in the future.
None of this will be good news for landowners who have already been caught out by the protective provisions of the Code. As the majority of the population becomes increasingly dependent upon good network coverage, it is likely that ever-increasing rights will be granted to telecoms operators and to the detriment of landowners. If the telecoms network does become the main communications network for emergency services, it may well be the case that in years to come we see telecoms equipment and its network being given the same status as our utilities.