So, what's the big deal, you may ask. Landlords get vacant possession from tenants before selling or redeveloping property all the time. That's true. But telecoms operators present unique headaches for building owners because of the heavy statutory protections given to them by the Electronic Communications Code (known as "Code powers"). It isn’t possible to remove a mast without terminating those Code powers.
This can be a difficult and time-consuming process that can lead to uncertainty for the building owner if the process isn’t managed effectively from day one. This is especially so where VP is on the crucial path for the sale or redevelopment of a site.
Removing a telecoms operator is like peeling an onion because the three different levels of legal protection that a telecoms tenant typically enjoys – the lease, the Landlord and Tenant Act 1954 and the Code – are like layers of an onion that have to be peeled away. Also, both activities will result in tears if not done properly.
So why is this process sometimes so painful? Well, where to begin. First up, the two statutes (the 1954 Act and the Code) sit uneasily side by side and don't work well together. Secondly, the Code loads the dice in the telecoms company's favour when it comes to getting possession. Thirdly, the lack of case law on the Code means there's considerable uncertainty about what its provisions mean and how they would be interpreted by a Court. Fourthly, in one of the few reported cases on the Code, the judge described it as one of the worst pieces of legislation ever drafted and it isn’t something most Judges are familiar with. The process therefore needs very careful management.
If working to a programme for the sale or redevelopment of land that has a telecoms mast on it, therefore, it's essential to get the ball rolling as soon as possible. It's never too early to do so and if VP is on the critical path, this will probably be one of the items with the longest lead in time.
Steve Eccles and his team have been dealing with telecoms cases for over 15 years. Here are a few practical tips for landowners who have a mast on their building or land that might need to be removed:
- The first thing is to check the lease and any other deeds to see whether and when it can be terminated, and whether it is protected by the Landlord and Tenant Act 1954.
- Any key dates such as break dates must then be diarised and steps taken to make sure they are not missed. The landowner's position is strengthened significantly if the lease can be ended in the near future.
- Consider the possibility of relocating the mast on the site. This is often a practical solution that both parties can live with, even if in some cases that may not be the ideal outcome.
- Tackle the situation early – in a difficult case the process can take two years or sometimes more.
Reform of the Code is overdue and this is in the Government's plans. Reform provisions were included in the Infrastructure Bill last year but withdrawn at the eleventh hour and there has been, ahem, radio silence since. Until that reform happens, the status quo prevails and this is likely to be the case for some time.
Central Government is asking public bodies sector to 'do their bit' to accommodate telecoms masts to boost national mobile connectivity. The public sector needs to do this with its eyes wide open – something that didn’t always happen when the network was originally rolled out and the telecoms market was less mature.
Where a mast is already in situ and a landowner needs to remove it, the crucial things to do immediately are to acknowledge the issue and the time it may take to resolve, and engage specialists to give you the advice you need to devise your strategy.