TELECOMMUNICATION MAST AGREEMENTS
Frequently landowners enter in to negotiations with telecommunications operators for the siting of a telecoms mast on their land without the benefit of legal advice in the mistaken belief that the form of agreement presented to them is straightforward. However, because telecommunications agreements are governed by statute it is important that prospective site owners are aware of the powers available to telecommunications operators under the Electronic Telecommunications Code 1984. Contrary to the normal principles of relative freedom of contract in commercial property leasing, Schedule 2 of the Act (Code Powers) can override many parts of a privately negotiated contract for a telecommunication mast agreement.
Prospective Landlords of telecommunication installations should be aware of the following points which are the elements of the Code most relevant to them:
- The agreement of the occupier of the land on which a mast is sited has to be obtained in writing to carry out any works on the land, to keep apparatus installed and to inspect the apparatus; it is therefore important that any written agreement between the parties sufficiently sets out their rights and obligations;
- Telecommunications operators have compulsory powers to acquire rights over land and, although they have to give notice of the need for such rights, can apply to Court for an order to dispense with landowners consent after 28 days of serving such notice; if the Court is satisfied that the benefit to others is greater than the loss to the landowner and the landowner is being adequately compensated the Court must grant the order
- Where an order dispensing with landowners consent is granted the Code deals with the financial terms of such an order, namely; there must be fair and reasonable consideration made for the giving of wayleaves (rights of access and laying of cables) and compensation paid for loss or damage suffered by the landowner/grantor;
- The landowners ability to require removal of any telecommunications equipment is restricted: although the landowner can serve notice of removal on the telecommunications operator, the operator can serve a counter notice the result of which is that the landowner can then only enforce removal with the consent of Court.
It is therefore important for landowners to be aware, when considering entering in to an agreement with a telecommunications operator, that the protection of the Code can be afforded to a telecommunications operator without a formal lease being entered into and legal advice should be sought.
