Getting rid of unwanted guests can be harder than you think
The Electronic Communications Code has made it much harder for landowners to remove telecoms operators
The Electronic Communications Code (‘the Code’), which came into force in December 2017, has made it much harder for landowners to remove telecoms operators. Effectively the only way of doing so is by redevelopment. The Code has also led to a substantial reduction in the revenue received by landowners from telecoms operators. As such, some landowners have been considering whether a redevelopment may have the added benefit of removing a telecoms operator whose presence is now unwelcome.
EE and Three had telecoms masts on the Meyrick Estate (‘the Estate’) in Hampshire. EE/Three’s leases had expired. Heads of terms were agreed for new leases in 2017 (pre-Code) but these were never completed.
In 2018 EE/Three sought new agreements under the Code, which were opposed by the Estate on the basis of a claimed intention to demolish the existing masts and to erect new masts in their place. The new masts would be taller, to provide mobile broadband to the local area, while also being capable of accommodating EE/Three’s equipment.
EE/Three did not accept that the Estate’s intention was genuine, so the matter had to be decided by the Property Tribunal (‘the Tribunal’).
The Estate argued that the scheme was genuine and had not been put together merely in order to evict EE/Three, this requirement having been recently imposed by the Supreme Court in business lease renewal cases, in the S Franses case.
EE/Three argued that the scheme was not genuine and had been artificially contrived by the Estate in order to deny them Code rights. If that was correct then the S Franses test would not be met and the Estate’s case would fail.
The Tribunal found that, while the Estate was capable of implementing the scheme, it would be expensive and would provide little benefit to the Estate or the local area. The scheme was only formed after December 2017 when the Code came into force, when the Estate would have realised that the revenue from EE/Three was about to drop substantially. Furthermore the Estate had not considered any other means of improving local broadband, despite claiming that was the true purpose of the scheme.
Accordingly the Tribunal concluded that the Estate had indeed contrived the scheme merely to evict EE/Three and would not have carried it out if EE/Three did not have Code rights.
As such, in effect applying the S Franses test, the Tribunal held that EE/Three were entitled to new Code agreements.
Although the landowner was unsuccessful in this particular case, the Code does allow a landowner to remove an operator on the ground of redevelopment.
It is possible that the low revenue liable to be received under a new Code agreement might spur a landowner into undertaking a redevelopment that would not have been contemplated pre-Code. If the redevelopment is genuine and has not been contrived merely to evict the telecoms operator then the S Franses test might be satisfied, in which case the landowner should in principle be entitled to possession.
As this is a developing area of law, it will be interesting to see what approach the Tribunal takes in such cases.
If you have any questions or would like to know more about our legal update, please contact Peter Hall (Principal Associate).