The Government’s ambitious plan to achieve 5G roll out has largely failed. The UK lags well behind competitors.
At the heart of contention lies the Electronic Communications Code and the ability of operators to impose a Code agreement on landlords and landowners.
Telecoms industry commentators point out that the operators’ strategy in 5G has alienated the group that it most needed to have on board, the landlords and landowners of telecoms mast sites.
Tim Clark, Head of Telecoms at Waldrons Solicitors, observes: “The operators have embarked on an aggressive programme of rent reduction aimed at seeing rental levels drop to £50 a year and also sought to impose other unfair terms in Code agreements on landlords. They back it by threat of tribunal sanction. If the landlord does not agree to an offer, there is risk of tribunal hearing and expensive litigation costs for the landlord. This has left many landlords distressed, frustrated and angry.”
The operators’ approach has largely been counter-productive. Some landlords have fought back by pursuing “test” cases. In Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited (2019) the Telecoms Tribunal heard that the operator could not impose a new Code agreement on the landowner as Cornerstone were not in occupation. The case was confirmed in the Court of Appeal. This was followed by Cornerstone Telecommunications Infrastructure Limited v Ashloch Limited and AP Wireless II (UK) Limited (2019) which found that where an existing lease is protected by the Landlord and Tenant Act 1954 this is excluded from renewal under the Code and should instead be renewed under the 1954 Act. The operators had literally following the wrong procedure in imposing Code agreements.
For landlords, the legal uncertainty following these cases has meant that a huge back log of telecoms lease renewals remain incomplete. Thousands of Code agreements remain incomplete.
For the network, 5G rollout has partially stalled.
The legal saga however rumbles on. Ashloch is being heard in the Court of Appeal in January 2021. In Compton permission to appeal to the Supreme Court has been granted.
As decisions in both are awaited, it appears likely that the operators have lobbied the government to pre-empt the risk that both these cases may actually be lost by the operators. What further detrimental effect will that have on 5G roll out?
On 27 January 2021 the government opened a consultation on changes to the Electronic Communications Code https://www.gov.uk/government/consultations/consultation-on-changes-to-the-electronic-communications-code The main topics are:
1 Issues relating to obtaining and using Code agreements
2 Rights to upgrade and share; and
3 Difficulties specifically relating to the renewal of expired agreements.
If you are a telecoms landlord or landowner, or simply want your say on the above, the closing date for submissions is 24 March 2021.
Tim Clark is a Solicitor and Head of Telecoms at Waldrons Solicitors, contact propertyconsultancy@waldrons.co.uk , Tel 01384 811811. Waldrons act exclusively for landlords and landowners against telecoms operators.
