The landowner was concerned about the scale of future upgrading works with the introduction of 5G technology and wanted:
(1) a list of equipment that could be installed and kept on the site included in the agreement; and
(2) that any upgrade of equipment should be conditional on terms which included:
- that any changes to the apparatus would have no more than a minimal adverse impact on the site’s appearance; and
- no additional burden should be imposed on the landowner.
However, the Upper Tribunal allowed the tenant operator to have an unlimited right to install and upgrade their equipment on the site. Whilst the Upper Tribunal appreciated this could lead to increased traffic, noise disturbances, pose a security threat and be a visual intrusion, it held that the landowner was adequately protected by other provisions in the agreement, such as being compensated where a nuisance, loss or injury was caused to the landowner by such disturbances. The benefit to the public of high-quality telecommunications ultimately outweighed the prejudice caused to the landowner which could be adequately compensated.
The tenant, being a provider of wholesale infrastructure to mobile network operators, also wanted a right to share the site with mobile network operators. The Upper Tribunal confirmed that the approach to take was to consider why the right was needed, what the landowner’s objections were and whether the right could be conferred alongside other terms to minimise the loss or damage.
The Upper Tribunal granted the tenant an unrestricted right to share the site. It held that without this their business could not operate and furthermore the terms of the agreement adequately protected the landowner if there were any issues. However, the Upper Tribunal did acknowledge that limiting the number of operators or specifying the operators who could share the site may be appropriate in some cases.
The land was a rural greenfield site with residential dwellings in close proximity. Consideration was given to the alternative use of the site, any additional benefit the agreement conferred on the tenant, and the adverse effect on the landowner. The Upper Tribunal held the tenant must pay rent of £1,200 per annum to the landowner (although this would have been £750 per annum if the dwellings had not been in such close proximity).
This case is a reminder of the strength telecommunication companies have under the relatively new Electronic Communications Code and that the public benefit of providing communications infrastructure will outweigh most prejudice caused to landowners, particularly where they can be financially compensated. No doubt many landowners will feel that the new code provides inadequate compensation and that the imbalance of power is unfair however, this is the latest case that demonstrates the operator friendly approach that is being taken by the courts in the public interest.
For further advice in relation to the Electronic Communication Code or other commercial property matters please contact Sarah Baron on 01223 461155 or click here to email Sarah.