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New code favours mobile phone mast operators
United Kingdom Created: 28 Dec 2017
NEW rules on communications infrastructure equipment will boost phone companies’ rights and could lead to a fall in revenues for some landowners, top property experts have warned.

The Electronic Communications Code , which comes into force from December 28, is being introduced under the Digital Economy Act 2017, governing agreements between site providers and operators for telecom apparatus such as masts and cables.

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The code is a statutory scheme of rights and obligations which operates in parallel with any contractual arrangements – and may in many instances override such an agreement.

According to Mike Reid, head of Energy and Utilities at Galbraith, the new code will enable operators to enter land against the landholder's wishes in order to install, erect, maintain and use any form of electronic communications apparatus, and any ancillary equipment needed to enable that.

“Site providers need to be aware of the provisions as they strengthen operators’ rights and change some provisions which have become commonplace in current agreements,” said Mr Reid. "The ECC strengthens operators’ rights and will see a fall in some site providers’ revenues, particularly for those receiving payments for ‘site sharing’ – where masts are used by more than one mobile-phone company."

Under the ECC, operators gain automatic rights to upgrade and share apparatus without permission from the landowner, provided there is minimal adverse visual impact or additional burden. They can assign agreements without owners seeking improved terms, and landlords lose the right to choose future tenants, raising concerns over compliance with lease obligations, particularly site restoration provisions.

Mr Reid continued: “The new ECC clearly strengthens the operators’ rights and it is important that landowners receive professional advice to help protect their interests in a changing regulatory environment."

Strutt and Parker's Ian Thornton-Kemsley agreed: “There has been a rush to complete agreements before the new code comes into force as it fundamentally changes the relationship between affected landowners and operators. Any agreement not completed by December 28 will fall into the provisions of the new code.

“Purchasers of property will need to ensure sufficient due diligence is carried out during conveyancing to establish whether any telecommunications right affect the property. Unfortunately, a reform of the registration regime has not been included in the new code. Agreements will be overriding interests capable of binding successors in title even where they haven’t been registered. If there is a telecoms interest this is likely to affect value and this may lead to delay and increased costs in conveyancing."
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Source: The Scottish Farmer, Kelly Finlay, 27 Dec 2017

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