5G conspiracy: what landowners can do to protect phone masts

Alison Oldfield and Karen Mitchell discuss the recent spate of attacks on 5G masts and what landowners can do to protect themselves. Arson attacks on telecoms mast sites are increasing. Twenty attacks took place over the Easter weekend alone. These appear to be linked to a conspiracy theory that 5G is connected to the spread of coronavirus. No scientific evidence supports this and it is causing a real problem for landowners with electronic communications apparatus (ECA) on their land. Securing the site Landowners should swiftly review the security of masts and check that everything that can be done is being done to keep out intruders. Part of that process will involve checking the agreement it has with the operator to establish if, and where, the obligation to secure lies – and to ensure those obligations are complied with.  Even if the operator is under an obligation to secure the ECA, it is likely that obligation will be limited to the ECA itself. In practice, the ECA will be sited on a wider area of land for which the operator is not responsible. Landowners would therefore be well advised to: review the location of the ECA including how access is taken; consider if there are any aggravating risk factors, such as the location of flammable material (eg back-up power generators); and regularly check in with neighbouring landowners to make sure that they have not seen anything suspicious.  Who bears the risk and who should pay if there is an incident? Again, this comes down to the terms of the lease. Typically, operators only insure the ECA (as well as having public/third-party liability cover) to cover the exercise of the rights. It is questionable whether the operator’s insurance would cover loss to the landowner’s adjoining property caused by someone setting fire to the ECA. Landowners should review the position and notify insurers of the presence of any ECA. Many leases contain an operator indemnity which, if applicable, covers losses to a landlord’s adjoining property. Usually, however, indemnities will only cover losses arising due to an operator’s breach of lease. Unless the landowner can point to a specific clause that has been breached – for example, a requirement to secure the site in circumstances where it was left unsecured – an indemnity is unlikely to be triggered. Even if it is, operators ordinarily ask for indemnities to be capped, often at a low figure which may not cover losses suffered, depending on the extent of damage caused.  Given this, landowners bear significant risk if ECA on their land becomes a target for campaigners. How can landowners protect themselves? Although court action is an option, taking action to dissuade potential intruders from coming onto the site in the first place is more effective. However, the Department for Digital, Culture, Media & Sport has made clear through its Covid-19 Guidance for Telecommunications Infrastructure Deployment in England (2 April 2020) that landowners must facilitate ongoing operator access to sites, even for unoccupied properties. Landowners therefore need to balance security measures against operators’ access rights and/or agree workarounds with the operators in advance. Dialogue on this issue is vital.  Police intervention is also possible given that arson attacks amount to criminal conduct. This is an effective option; however, the police have discretion on how to apply their manpower at a time of stretched resources. Early engagement with the police at the right level is an important part of an effective response strategy, even if only to notify them of the location of masts and seek increased patrols. Court proceedings and what they can achieve If all else fails, landowners could seek an injunction to prevent unlawful activities. The sanction for breaching an injunction is contempt of court, which carries a criminal sentence. In appropriate circumstances, it is a powerful weapon in a landowner’s armoury. Injunctions cover numerous aspects of intruders’ conduct. Damage to property is both a criminal offence and a civil tort. Accessing the mast site will also involve going onto private property without the landowner’s consent, which is an unlawful trespass. In cases of high-value property, dangerous locations or repeated targeting, injunctions are an option that landowners could explore. But is it possible to seek an injunction to protect mast sites in advance of them actually being specifically targeted? In principle, an injunction is available where there is a real and imminent risk of unlawful conduct occurring (Elliott v London Borough of Islington [2012] EWCA Civ 56; [2012] PLSCS 23). Once the site is specifically targeted, the case for an injunction is usually fairly clear. The situation is trickier where a landowner fears an attack but has not yet experienced direct action.  A pre-emptive application is likely to be scrutinised closely if the landowner does not know the identity of the intruders and the application is against “persons unknown”. While it is entirely possible, the Court of Appeal recently confirmed that any injunction against persons unknown should be carefully drafted to avoid prohibiting lawful conduct except where necessary to protect the interests of the landowner effectively (Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515 and Cuadrilla Bowland Ltd and others v Persons Unknown [2020] EWCA Civ 9; [2020] PLSCS 10). In the context of arson attacks on mast sites, unlawful conduct may well be clear and easy to define but, for instance, a landowner will need to be absolutely clear where the boundaries of private property lie and what rights of way may exist over the site that might complicate the process of getting an injunction to exclude access. An application for an injunction can include a claim for damages, although in order to have any teeth, the landowner would need to know the identity of the arsonist(s) and whether they had the resources to meet a damages and cost award. There are then a range of practical and legal measures available to landowners at risk of 5G arson attacks. The key is to be proactive, to understand the legal framework and options available and to take steps to effectively manage the risks posed by this recent spate of attacks. Alison Oldfield is a partner and Karen Mitchell is a senior associate in the real estate litigation team at Eversheds Sutherland