The Digital Economy Act
The Digital Economy Act came into force in December 2017 so we’ve now had a couple of years to get used to the new telecommunications landscape.
For those who don’t know, the Digital Economy Act contains the Electronic Communications Code (‘the Code’) which is a framework for operators to obtain rights to install their apparatus on private land.
The rights granted to telecommunications operators under the Code are substantial and include a right for an operator to apply to the Lands Tribunal to have an agreement imposed on a landowner for potentially very little compensation for the landowner.
The 5G Rollout
The rights for telecommunications operators under the Code are about to become an important consideration for a number of land and property owners due to the impending 5G rollout. Although the details of the 5G rollout are not yet known, it’s believed that 5G hardware will need to be not more than 200m apart (4G can be up to 2km apart) and may need to be 20m away from human beings. That being the case, we’re likely to see a significant increase in the number of masts springing up across the country.
So, we’re now looking at a conflation of two positions:
- The rights of telecommunications operators to go to court and have agreements imposed on property owners; and
- A massively increased number of masts needed for the 5G rollout.
The Impact on Airspace Development
The potential impact on airspace development, then, is huge. If 5G masts are going to need to be no more than 200m apart, then the availability of roofs for development will be materially decreased.
So, can anything to be done to stop the depletion of available development?
Getting In-front of the Telecommunications Operators
Well, the question came to the Lands Tribunal in the middle of 2019 in the case of EE Ltd and Hutchison 3G UK v Meyrick 1968 Combined Trust of Meyrick Estate Management. The facts of the case are fairly unique, beyond the scope of what we’re interested in here, but the tribunal addressed whether a property owner could resist the installation of a mast on their land.
The tribunal adopted the principles from the cases decided under the Landlord & Tenant Act 1954 ground for refusing a renewal lease on the grounds of development being:
- The subjective test: is the intention to develop firm, settled and unconditional?
- The objective test: is there a reasonable prospect of bringing about the development?
Both tests are judged at the date of the hearing.
Property owners who may have developable rooftops really need to start moving on this now if they’re going to mitigate the risk of their rooftop being hijacked by a telecommunications operator and be able to show their intention to develop and that the roof is developable.
Mitigating Risks of Low Compensation Payments
It’s worth noting that just because there is a settled intention to develop and a reasonable prospect of development, that may not be enough to defeat a claim by a telecommunications operator.
If a property owner can be given adequate compensation and the public benefit is sufficient, then a court may still order an agreement between the property owner and the telecommunications operator for the siting of a mast.
However, that compensation is based on ‘no scheme’ valuation – i.e. the compensation for the property owner is valued on the basis of what the site is worth, excepting use as a telecommunications mast. As roofs have very little use, telecommunications companies will argue that the compensation should be very low (as they did successfully in EE Ltd v Islington LBC). So a property owner can mitigate their risk of getting very low compensation from the telecommunications operator by taking steps to increase the value of their roof – i.e. by putting development steps in place.
There will be many battles ahead, but the telecommunications operators rolling out 5G are a real threat to the availability of airspace in urban areas. As a sector we need to take steps now to mitigate this risk and prepare for the fights ahead. And win.