Questions a landowner may have but never asked
How much will they pay me?
This is a hot topic at the moment since the new Electronic Communications Code (“Code”) came into force on 28 December 2017.
The rent that operators pay is still determined within a free market where an agreement is being negotiated between an occupier of land and an operator. On the other hand, where an agreement is imposed on an occupier by the court, there is a new way of determining the rent which does not take into account the value of the land as a telecoms site. It is determined using the land’s value as bare land. This has led a lot of operators to believe that they can expect to pay far less than prior to the Code coming into force.
Leaving to one side for a moment the uncertainty created by the Code, rents vary in a similar way to house prices depending on the location of the site. Typically the amount paid for a site in a rural location will be less than that paid for a site in a town or city.
Who are the operators that want to put equipment up?
The operators are in many cases companies who provide communications networks. They may though be infrastructure providers who would manage the site on behalf of network providers with whom they share the site. If so, they would be your point of contact, paying the rent and dealing with any issues, but might not be operating from the site.
Under the Code it is permitted for operators who have an agreement for a particular site to share that site with other operators without seeking your consent. It is therefore increasingly likely that multiple operators would be present even though you only have an agreement with one.
Does my other half have to agree to this?
Technically speaking, if you are an individual and you own land jointly with somebody else, you can grant rights to operators under the Code without their consent. In that instance the agreement between you and the operators would be personal (i.e. it would not be binding on the person with whom you own the land). In practical terms though, they would clearly be affected by having a communications site on the land that you own together.
If the land is owned in the name of a company then anybody with the power to enter into a binding contract on behalf of that company may grant rights under the Code. Whether this can be done by one individual would depend on the internal rules governing that particular company.
Would I be responsible for maintenance of the site?
This would depend on the terms of the agreement between you and the operators. Normally the operators would be responsible for the maintenance of the site, and it would be highly unusual for this not to be the case. Most operators will want the right under the agreement to “maintain” the site, along with other ancillary rights such as the right to lop surrounding trees. From your point of view, you may wish to actively impose obligations on the operators to keep the site fairly well maintained.
Who would pay for all the electricity used?
That depends on the arrangements that you make with the operators. In order not to pay for the electricity that they are using you may want to insist that they have a separately metered supply.
Will I be liable if the equipment harms or injures someone?
From a legal point of view, if something on your land causes harm to (for example) labourers or tenants, then yes, you might be liable. That is why it is common in an agreement for the operators to be required to maintain insurance against such liability up to a certain level (in the millions of pounds). Then if somebody sues you for harm caused by the equipment on your land, the agreement will usually say that the operator must indemnify you up to that amount if damages are awarded.
How easy would it be to get them off the land?
It certainly wouldn’t be “easy”. You would need to give the operators 18 months’ notice and specify a valid reason under the Code. The operators may resist this by applying to the court, in which case you would have to put your case forward to the court.
Assuming the court rules in your favour, there is still a possibility that the operators will not budge, and in these circumstances you would need to serve another notice requiring them to remove their equipment and restore the land. If they still do not comply then you would have to seek a court order to get them off.
Will the equipment initially installed be all there is? Or might they add more?
Under the Code operators have the right to share equipment and also to upgrade the equipment without restriction. Sadly the term “upgrade” is not defined within the Code, so what that means is currently unclear. It may be that this allows operators to install more equipment on the site.
The right to upgrade is caveated in two ways. It must not have more than a minimal adverse impact on the appearance of the site, and it must not impose any additional burden on the landowner. This provides some reassurance at least.
How much control will I have over people coming onto my land to access the site?
You have the freedom when negotiating an agreement to specify requirements that you might have relating to access. Some landowners require the operators to comply with safety and/or security procedures. There are many issues that might arise when thinking about people coming onto land to maintain the site. For example, if a site is on the grounds of a school then there are likely to be safeguarding procedures that visitors need to comply with. All of this should be thought about and set out clearly in the agreement.
I keep livestock. Will they be safe from the equipment and vice versa?
Again, this is an individual circumstance that can be dealt with within the agreement. Many agreements dealing with sites on farmland impose an obligation on the operators to maintain a stock proof fence around the perimeter of the site. That would be one option to make sure the livestock and equipment are kept apart.
For more information on any of the above, please contact Graham Jones, or you can give us a call on 0345 070 6000.