Legal Q&A: Code compliance conundrums

Emma Humphreys and Zia Bhaloo QC answer landowners’ queries about the new Electronic Communications Code, and removing telecoms apparatus Question: I have a telecoms mast on my land installed by a mobile telephone company. The agreement is not due to expire for another three years but it has been excluded from the protection of the Landlord and Tenant Act 1954 and I am hoping to redevelop the land at that point. How should I go about ensuring that the mast is removed at the end of the agreement? Answer: The apparatus installed by the company is probably protected by the new Electronic Communications Code and you will therefore need to follow a specific process –  possibly involving tribunal proceedings – in order to terminate the agreement. However, you can help the mobile operator to work within your timetable by giving it as much informal advance notice as possible of your plans.  Explanation Your agreement is probably protected by the new Code, which was introduced by the Digital Economy Act 2017, although you can check the register of Code operators on Ofcom’s website. For an overview of the new Code, see “Code red for landowners?”. As that article suggests, the new Code tries to set out a clearer process for landowners who want to redevelop their land, but there is a potentially lengthy termination process to follow. As well as this formal termination process, it is worth thinking about giving as much informal advance notice as possible of your plans to the mobile operator in order to assist it in cooperating with your preferred timetable. To terminate an agreement under the new Code, you will need to serve a “paragraph 31” notice on the mobile operator. This must give at least 18 months’ notice but cannot end the agreement before its contractual termination provisions allow. The paragraph 31 notice must specify one of a number of available statutory grounds for removal. These include an intention to redevelop all/part of the land or any neighbouring land and that you could not reasonably do so unless the Code agreement comes to an end. There are various requirements for the notice set out in the new Code and there is a specific form and other guidance available from Ofcom’s website. Once notice has been served, the operator must serve counter-notice within three months if it wishes to protect its entitlement to try to remain on site. The operator is then required to apply to the First-tier Tribunal to protect its ability to remain on the land and it could take some time for that application to be heard. However, if you establish any one of the statutory grounds for termination at the hearing, the tribunal should then order the termination of the Code agreement. If you fail to prove your case for termination, then the tribunal has a menu of orders which it can make – eg to continue the existing Code rights or modify the existing Code agreement. If there is either no counter-notice or no application to the tribunal, then the Code agreement will come to an end on the date provided for in the paragraph 31 notice. However, the 18-month notice period will obviously still apply. Question: If the mobile operator doesn’t cooperate with my desire to redevelop the site even after I terminate the agreement, can I simply remove its apparatus and start my works? Answer: No. If the operator does not voluntarily remove its apparatus, then you will need to follow an additional notice process under the new Code in order to be entitled to remove it. This may again necessitate tribunal proceedings, either to require the operator to remove its apparatus or enable you to do so. Explanation Once termination is achieved under the new process, there is then a further process to achieve removal of apparatus if the mobile operator does not remove it voluntarily. If you do not follow this process, then the operator may well seek an injunction to prevent you from removing its apparatus and/or claim damages. Paragraph 40 of the new Code requires a landowner to give a “reasonable” period of notice to the operator for completing the works required to remove its apparatus and restore the land. Again, there are various requirements for the notice set out in the new Code, as well as a specific form and guidance available on Ofcom’s website. There is obviously no guidance yet on how the tribunal is likely to assess the “reasonable” period of notice required, although it should arguably take note of the fact that the operator will already have had 18 months’ notice by the time any removal notice under paragraph 40 is served. If the parties are unable to agree terms for apparatus  removal within 28 days beginning with the day on which the paragraph 40 notice was given, you will be entitled to apply to the tribunal for: an order requiring the operator to remove its apparatus; or an order enabling you to sell the apparatus. However, paragraph 40(8) expressly prevents the tribunal from making such an order if the operator applies for a new Code agreement to be imposed on you and the application has not yet been decided. Assuming that the tribunal orders the removal of the apparatus, it has the power to allow you to: Remove or arrange the removal of the apparatus Sell any apparatus removed Recover the costs of the removal/sale from the operator Recover the costs of restoring the land from the operator Set-off the proceeds of sale against the above costs The tribunal may also order the operator to pay compensation to you for any loss or damage suffered as a result of the presence of the apparatus on the land during the period when you were entitled to require its removal, but were unable to exercise the right. Hopefully, this will encourage the operator to vacate voluntarily. Emma Humphreys is a partner at Charles Russell Speechlys LLP and Zia Bhaloo QC is a barrister at Enterprise Chambers