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Commercial property expert provides an update on the telecommunications code and security of tenure

4 June 2008

Richard Larking, Partner in Commercial Property provides an update with regards to the Telecommunications Code and security of tenure

Landowners often see a telecoms mast in a corner of the car park or on the roof as an easy way of gaining additional revenue. What they do not consider is the very considerable difficulties surrounding the removal of the mast should the operator not co-operate for removal of their equipment. The telecommunications code (the Code) contained in Schedule 2 of the Telecommunications Act 1984 as amended by the Communications Act 2003, governs the relationship between electronic communications, operators and landowners.

Key provisions of the Code

• obtaining consent. An operator must seek the written consent of the occupier for the time being of the land on which it wishes to install apparatus. This can include a tenant but consent will not bind a landlord provided that it does not acknowledge the operator's Code rights
• removing apparatus. Under paragraph 21, a landowner can serve a notice on the occupier requiring removal of the apparatus if it is ‘entitled' to do so (when the occupier no longer has rights over the land). If the occupier serves a counter notice the apparatus can only be removed by consent of the operator or a court order.
• obtaining a court order. If the landowner refuses to grant consent within 27 days of the operator's request, under paragraph 5 the operator can apply for a court order to obtain rights over the land without the landowner's consent. The court will grant this if it is satisfied that any prejudice caused by the order can be financially compensated or is outweighed by the benefits to those who will have access to the communications network

Security of tenure

If the operator has a tenancy it will benefit from the security of tenure provisions of the Landlord and Tenant Act 1954 (the 1954 Act) unless this protection has been specifically excluded. The operator is likely to have a tenancy if it has exclusive occupation whether the agreement entered into between the parties is called a lease or not.

The 1954 Act allows a tenant to remain in occupation after the expiry of its contractual term until the landlord serves a statutory notice to terminate the occupation and can prove one of the grounds to prevent renewal of the operators lease. The landlord will usually rely on ground (f) (demolition and construction) or (g) (owner occupation).

Circularity

However, a problem arises from the apparent circularity of the Code and the 1954 Act procedures. In both cases the landlord will have to satisfy the court that it is entitled to an order removing the operator and in both cases the landlord is not entitled to that order while rights under the other Code/Act remain.

Possible solutions

A landowner should be aware that a lease can be created even if the intention is to give the operator a licence. Security of tenure should be excluded to avoid the problem of dual security of tenure procedures. The Code cannot be excluded.

If the 1954 Act cannot be excluded, for instance in a tenancy already granted, there is little case law to assist in addressing the problem. One solution may be for the court to hear both applications together and grant an order for possession under paragraph 21 of the Code to take effect at the same time as possession under the 1954 Act. While the application under the Code would not strictly speaking be made by an ‘entitled' person, this may provide the only practical solution.