By Rob Shaw, Senior Associate – DLA Piper (real estate)

This is our second article on the Electronic Communications Code. The first is here

A key issue for operators to be aware of when entering into agreements with landowners or occupiers for the siting of telecoms apparatus on their land is how protected they will be when a landowner or occupier wants to recover that land when the agreement expires or alternatively what happens if they require the apparatus to be moved.  Operators will be in a better bargaining position when it comes to negotiations if they are aware of their rights from the start.

The Code provides its own form of security of tenure to operators.  Paragraph 20 provides a power to landowners or occupiers to require the alteration or removal of apparatus where “necessary” and paragraph 21 provides a restriction on the right to require the removal of apparatus.  Such provisions can present difficulties for landowners or occupiers when wanting to recover possession or alter the position of apparatus (unless the operator voluntarily agrees).

In addition leases allowing the siting of telecoms apparatus are not exempted from the usual security of tenure provisions of Part II of the Landlord and Tenant Act 1954 (“1954 Act”).  As such, so long as an operator can satisfy the test under the 1954 Act (that they are in occupation of premises for the purpose of a business carried on by them) then the lease will continue after contractual expiry and the landlord will only be able to terminate the lease on one of the statutory grounds set out in the 1954 Act.  The 1954 Act may also apply even if landowners or occupiers think they have granted a licence, which in reality is actually found by a court to be a lease – although to avoid any uncertainty here it would be sensible to ensure a lease is expressly granted from the start.

It is possible for parties to agree that the 1954 Act will not apply to a lease, but the Code is something separate and elements of it will apply irrespective of any agreement between the parties.

The interaction between the Code and 1954 Act is not clear (and it has caused parties and their lawyers many headaches in the past).  The safest course of action for landowners or occupiers is to exclude the provisions of 1954 Act, so that the parties only need to be concerned with the Code instead of two potentially conflicting pieces of legislation.  However, there is no obligation on operators to agree to such an exclusion and rely on only their rights under the Code.

It should be noted that the government is in the process of drafting a new version of the Code which will likely include provisions automatically exempting a lease granting Code rights from the security of tenure provisions of the Landlord & Tenant Act 1954.  This will clear up any conflict between the Code and 1954 Act, but could remove some of the protections currently afforded to operators.