Nicholas Cheffings explains why, at last, property owners can speak out against the difficulties in the current telecommunications law, described as “one of the least coherent pieces of legislation on the statute book” by Lord Justice Lewison in a 2010 judgment.
The out-of-date and confusing piece of legislation to which he refers is the Electronic Communications Code, on which the government opened a consultation at the end of June.
The Code was set out in the Telecommunications Act 1984 and gives compulsory purchase rights and statutory protection to telecoms operators, on the principle that no person should be unreasonably denied access to telecoms - a great concept, of course and one to which our increasingly technological world appears wholeheartedly to subscribe.
But what about property owners, at the other end of the telescope, who see only an unfair disregard of their interests?
The priority provisions are particularly controversial. In certain circumstances, a freehold owner will be bound by an agreement entered into by its tenant for the duration of the lease, even where that agreement has been made without the owner’s knowledge and in breach of the lease.
You might think that if the owner is only bound while the lease exists, this is no big deal. Wrong. Although the owner appears to be free when the lease ends, the operator will still have security of tenure. The owner has to follow the complex statutory process to require the operator to move or remove its apparatus unless a deal can be struck, which is a challenge.
A further difficulty is the interaction of the Code with the security of tenure provisions of the Landlord and Tenant Act 1954. At present, operators are protected by the Act where they occupy premisesfor example, the corner of a roof for business purposes. Owners can only terminate the operator’s tenancy under the Act on one of the usual statutory grounds, such as redevelopment. This is fine so far, because why else would you bother?
The problem is that notice to start the removal process can only be served under the Code when the owner is “entitled” to require such removal. As long as the tenancy continues under the Act, the owner will not be “entitled” and would have to terminate the tenancy first.
Again, this is not such a big deal, is it? Unfortunately, to determine the tenancy under the Act, an owner needs to show it can carry out the proposed redevelopment on termination of the tenancy. The owner could face a lengthy removal process under the Code when the lease ends. Owners are therefore caught in a vicious, but apparently virtuous, cycle, trapped between two different security of tenure regimes - one designed to protect the oppressed and the other to give opportunity to all. Together, they seem to have the opposite effect on property owners.
Help is at hand in the form of the government’s long-awaited consultation to reform the rights of telecoms operators to install and maintain apparatus on public and private land.
A key proposal is to limit the interaction with the Act, so that operators will only attract security of tenure under one of the regimes - and the Code will take priority. The lengthy processes to force relocation or removal of the apparatus are to remain, but at least property owners will avoid a classic catch-22.
Another proposal is to introduce a contracting-out process. This could help to level the playing field between experienced owners and occupiers.
It feels like a positive step, but does it go far enough? If a tenant is happy to enter into an arrangement in breach of its lease to generate money from an operator, it seems unlikely it will be interested in protecting its landlord by making sure the occupation is contracted out of the Code.
The consultation is an opportunity for the oppressed and disenfranchised to stand up and be heard. What a change it is for property owners to count themselves among that number.