Letting your land to a mobile phone mast operator: five things you should know

The Code has been in force in one form or another for many years but was updated in 2017 to enable the 5G rollout. The Code is designed to support telecoms companies by streamlining the process for installing and maintaining masts. In 2022 a further update was made to, amongst other things, encourage the use of Alternative Dispute Resolution (ADR) in settling disputes.

Partner and property litigation expert Ed Cracknell outlines five key aspects to consider when entering into a lease agreement with a mobile phone mast operator.

If a telecoms operator has identified your land as somewhere to put a mobile phone mast or other telecoms equipment, it will want to carry out what is known as a multi-skilled visit or MSV. This is a site survey at which engineers will check whether the land is a suitable place for the mast.

The visit will probably only take a few hours so it is probably not objectionable in itself, but it is the start of a process that could result in a mandatory agreement being imposed on you, so some landowners might wish to refuse access to their land.

Can you refuse access?

While the prospect of refusing access might seem appealing to protect your property, telecom operators possess the legal right to request access through the Upper Tribunal.

The Upper Tribunal's role

Should the operator seek an order from the Upper Tribunal, you would need to provide substantial evidence to counter the request. This includes demonstrating significant harm that outweighs the public benefit of the mast installation or planned land redevelopment. Those arguments are better deployed later however, if and when the operator assesses the site to be suitable.

Once the MSV has taken place, if the land is suitable, the operator will suggest terms for an agreement allowing it to install the equipment on your land, and to keep it there for a period of time – perhaps 10 years.

If terms cannot be agreed, the operator can start a process which could ultimately end in the Upper Tribunal ordering you to grant the agreement.

Grounds for objecting to mobile phone masts

Just like the MSV, you can only oppose that agreement (broadly speaking) if:

• you are planning to redevelop the property, or
• if the prejudice to you outweighs the public benefit

The starting point for the tribunal is that having a choice of high-quality mobile phone networks is a significant public benefit, so you are on the back foot to begin with. It is hard to think of many situations where the prejudice to a single landowner could trump the public benefit; some circumstances will exist, but the cards are very much stacked in the operator’s favour.

Redevelopment gives you a much better chance of resisting the operator’s advances, but you will need to demonstrate firm plans - it will help for example if you have planning permission.

Alternative dispute resolution

A notable change in the 2023 ECC update is the new obligation for operators and site providers to consider ADR before resorting to tribunal actions for disagreements over new site agreements or modifications to existing ones. This move, supported by updated Ofcom template notices, is designed to reduce legal costs and expedite resolutions. It remains to be seen how much difference this will make to the process.

Interim Orders for agreement modifications

The amendments also introduce the possibility for either party to apply for interim orders. This can adjust financial terms or modify existing agreements while awaiting a final decision. This change, applicable to both current and expired agreements, aims to make the negotiation process more efficient and cost-effective.

In setting the terms of the agreement, the tribunal will try to strike a fair balance between the parties. But there are some provisions that the Code guarantees.

For example:

• operators can assign the agreement to other Code operators without requiring the landowner’s consent
• operators can also share their mast with other operators, and upgrade their equipment, without consent and without payment

The tribunal has a wide discretion over what terms to order but will exercise that discretion with the statutory purpose – making infrastructure deployment and maintenance easier and cheaper – in mind.

A pivotal aspect of the leasing agreement is the rent valuation. Recent changes under the new Code have significantly altered how rent is calculated, generally resulting in lower financial compensation for landowners. The valuation now hinges on hypothetical assumptions that do not prioritise the land's strategic importance, leading to reduced rental income.

In Cornerstone v London and Quadrant (2020) for example, the tribunal ordered a rent of £5,000 pa for a mast on the roof of a London block of flats.

Understanding this valuation framework is crucial for landowners to set realistic expectations and strategise financial negotiations. Specialist telecoms surveyors can advise and represent you in negotiations.

Once an agreement has been entered into – whether voluntarily or after a tribunal decision – the equipment enjoys strong statutory protection.

Assuming the agreement was granted for a fixed term like 5 or 10 years, it won’t end automatically at that time. Instead it will continue on the same terms until one or other party serves a notice either requesting a new agreement or seeking termination.

A landowner wishing to terminate the agreement must serve an 18-month notice setting out one or more of the statutory grounds. There are several grounds but the one that is most likely to be used – or most likely to be successful – is where a redevelopment is planned.

Assuming the operator serves the relevant counter-notice, the agreement can only be terminated if the tribunal agrees that the ground is made out.

Once the agreement has been terminated, landowners cannot enforce the removal of the equipment immediately. A further notice must be served seeking removal. If terms of removal cannot be agreed within 28 days, the landowner must apply back to the tribunal for a removal order.

Letting a telecoms operator install a mast on your land is a much less attractive proposition than it used to be.

Things have, in theory, got much better for operators. But landowners are now so wary of operators that they are not giving operators an easy ride. Operators are fighting complicated and expensive battles all across the country, so perhaps there are no clear winners.

The 2022 amendments to the Electronic Communications Code represent a significant step towards improving the UK's digital infrastructure. By encouraging ADR and introducing interim orders, the changes aim to foster a more collaborative and efficient environment for operators and site providers.

We expect the Code to continue to develop, both through reported court decisions and changes to the legislation, but the fundamentals are unlikely to change.