The presence of telecommunications apparatus can be a major obstacle to a landowner’s ability to dispose of or redevelop its land. Most mobile operators enjoy statutory protection which makes it very difficult for them to be removed from sites.
For NHS Trusts planning to rationalise their estates and remove telecoms operators from sites, it is crucial that the occupier’s presence is identified and addressed early on in the process. This note summarises the key legal issues that NHS landowners should be aware of in relation to telecoms.
The written agreement
The landowner is bound by the terms of the written ‘lease’ or ‘licence’. These documents are often called “agreements” rather than leases but in most cases the arrangement will constitute a lease, no matter what it is called.
It is essential that any deadlines for giving the operator notice to break the arrangement are diarised in advance and not missed. Legal advice should be taken before any notices are served (or other steps taken) as in all likelihood other notices will need to be served at the same time.
The Landlord and Tenant Act 1954
In addition to rights under the lease, the landowner will probably also have to terminate the operator’s statutory rights under this Act (unless the Act was specifically excluded but this rarely happens in telecoms leases). If the Act applies, then at lease expiry the operator will be able to require the Court to grant it a new lease unless the landlord can prove one of seven statutory grounds. The two most common are known as “ground (f)”, which is the statutory redevelopment ground, and “ground (g)” which applies when the landlord requires the premises back for its own purposes.
Ending a tenancy under the Act is time consuming. The process is started by the giving of a minimum of 6 months’ notice and if the operator fights the case, the process typically takes more than 18 months to take it through to a trial. If the Court ends the operator’s tenancy at trial, the Act gives the operator a further 3½ months to vacate. There are also limitations in each case which can make it difficult for a landlord to terminate the operator’s lease under the Act.
To avoid these pitfalls, it is essential that legal advice is taken and that a careful “possession strategy” is put in place before any notices are served.
The Electronic Communications Code
It is the Code that puts operators in a unique position and, in property law terms, gives them an embarrassment of riches to rely on. Where an NHS landowner requires possession from a Code operator, there are 3 main provisions in the Code which are of relevance.
This provision makes it unlawful for a landowner to remove an operator from a site unless the Paragraph 21 procedure is followed – even if all the operator’s other rights have been ended and the operator would otherwise be treated as trespassing.
The landowner must give the operator a notice to vacate. If the operator a counter-notice within 28 days (which invariably happens) the landowner must apply to Court for a possession order. The landowner does not have an automatic right to possession, and the Court has discretion to refuse the landowner’s application. In practice, however, it is very unusual for an operator to contest a Paragraph 21 application to remain on site if its continued presence would have a detrimental effect on the landowner’s plans. Operators are sensitive to the adverse publicity which could be attracted if “Code powers” are enforced too aggressively.
This is a similar provision to Paragraph 21, but it is mainly of use where a landowner requires an operator to relocate (i.e. “lift and shift”) its apparatus so that repair, maintenance or redevelopment works can take place. It is less commonly used by landowners where outright possession is required, but it can be used in these circumstances.
This is a wide ranging power which enables an operator to apply to Court for an order compelling the landowner to grant the operator rights over land, even where the landowner does not want to do so. A Paragraph 5 application can be made to the Court at any time, and such applications are often threatened by operators when they need to buy more time to vacate a site.
The last few years have seen a series of consolidations between the main players in the telecoms market (Vodafone, O2, Orange, Everything Everywhere, Hutchison 3G and Airwave). This has been driven by a need to achieve wider network coverage at minimal extra capital cost and to reduce rent rolls.
Following these consolidations, operators have been undertaking a review of their mast portfolios to identify which ones are valuable to them and which ones could be dispensed with. This has led to the operators drawing up lists of sites to keep and sites to lose.
Sites on the ‘keep’ list
These sites will have been identified by the operators either as strategically key to the network or as important sites because of the difficulty in sourcing alternative coverage if the site were lost.
Until now, operators have not been willing to fight cases in Court to retain important sites in the face of a landowner having genuine plans to sell or redevelop. It has been seen as too damaging to their reputation in the marketplace to do so. However, this may not be the case forever.
Uninterrupted network coverage is the lifeblood of the operator’s business. It can take up to 2 years for an operator to identify, acquire, build and integrate a new site (if another existing site cannot absorb the loss of coverage). This means operators often have no commercial option but to rely on their legal rights to buy the time needed to prepare a new site.
If you want to remove an operator, you should plan ahead and address occupation by telecoms operators as soon as a site is earmarked as potentially surplus. This should involve obtaining early legal advice on the legal status of the operator’s occupation and the steps required to obtain vacant possession. You can then factor this into your programme. If you start the process early enough will be able to minimise delays to their sale plans. Those who fail to take early and decisive action do so at their peril.
Alternatively, you may receive a request from an operator (or agent) for the Trust’s permission to assign the lease or carry out alterations. Such requests are often made informally with the deliberate aim of trying to obtain consent without the landowner fully considering its legal position.
It is possible that the operator will be seeking permission to do something prohibited by the lease, such as install additional equipment. Operators will usually agree to pay an increased rent in return for such rights, but they will only do so if required! NHS landowners should take legal advice to understand what the lease permits. Advice from a telecoms surveyor may also be required to ensure that the Trust maximises its income stream from the operator.
Sites on the ‘lose’ list
Of course, many NHS landowners are very happy to have operators occupying their hospital sites and paying rent for using what would otherwise be dead space.
You may receive a notice from the operator to terminate its lease. Immediately upon receipt of such a notice, landowners should take legal advice on whether the notice is valid. In our experience, it is quite possible that such notices will not be valid and it may be that on a correct interpretation of the lease, the operator is not able to terminate (e.g. because the operator is only entitled to terminate if it loses its Code powers or if the site stops being operationally useful to the operator, which is rare).
Bevan Brittan has a specialist telecoms team, headed by Steve Eccles, and has acted for and against telecoms operators for over 15 years. To discuss any of the issues raised in this article, please contact:-