9165 - BM Outlook 2022 R6 - Flipbook - Page 31
This letter is mildly threatening.
Are you sure I can’t ignore it?
The letters can be intimidating and
often imply you have greater obligations
to them than perhaps might be the case;
that’s why it’s important to take advice. But
you must respond, or things are likely to
escalate quickly. We know landowners who
have received three letters in a month.
I’m really not happy about this.
What are my options?
If you really are set against the idea of
the MSV taking place, you will need a
very good reason as all the applications
that have reached the Tribunal so far
have been granted (albeit subject to
conditions). Depending on the operator’s
aspirations for the site, you could be
taken to court and the operator will have
a strong case as the law is on their side.
So what will happen next?
The operator will carry out the MSV,
assess the situation and come up with
a proposal.
What control do I have over the MSV
on the day?
We suggest you ask a professional
adviser to be on hand to manage
the event, preferably someone with
experience in this area. They can agree
site boundaries, put a sensible time limit
on the investigations and represent the
landowner’s interests, remembering that
signing a document will formally create
a Code agreement.
This is going to cost me money.
Who pays?
The good news is that the operator must
pay the landlord’s reasonable costs
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related to the MSV, so if you need to stop
work for a day or incur any other justifiable
costs, make a note of it and claim it back,
although you should get agreement
from the operator upfront. Again, your
professional adviser can help.
But who pays for the professional adviser?
More good news: the operator does,
which means getting an expert from
Batcheller Monkhouse or another
reputable firm on board at an early
stage makes complete sense.
They like the site and have come back with
Heads of Terms. Do I have to accept it?
Certainly not. The Heads of Terms
will form the basis of the lease and
will always start life as an extremely
operator-friendly document. While
operators have the whip hand at the
moment, a professional adviser will
usually be able to negotiate better terms
– both monetary and in agreeing what
they are allowed to do.
I can’t work out how they have come
up with the figure for the rental.
Can you help?
The Upper Tribunal has decided that the
rent should be based on three things –
the value of the land or its most valuable
alternative use; any additional benefits
the landowner can provide the operator
(such as access to an electricity supply):
and the burdens the deal will place on the
landowner (such as the loss of amenity).
As a guide, the Tribunal estimates that
most sites located in fields or woodland
will be valued at between £750 and
£1,500 per annum. In many cases,
Batcheller Monkhouse can achieve a
larger sum.
What other things should I think about?
You need to consider how long the deal will
last, the necessary access arrangements,
what disruption it might cause your
business, rent review provisions,
insurance and indemnity provisions and
yielding up the site (to name a few). You
should also consider whether or not a
‘lift and shift’ provision under which you
will let them move the mast if you intend
to develop the land, is necessary.
I’ve heard it’s possible to negotiate a
redevelopment break. Is that important?
Very. Operators generally resist such
a clause because it’s a threat to their
network but it’s important to include one if
there is a real prospect of development on
your land. You will need to show a strong
intention to do so, though – preferably
with a planning application to hand.
I’ve heard what you say, but I still don’t
like the idea. How can I resist?
It’s not easy. You need to pass a two
stage ‘public benefit’ test to be able
to refuse a Code agreement. The first
question is: ‘Can the burden the landlord
will suffer be compensated for with
money?’ The second is: ‘Is the public
benefit the mast will provide greater than
the burden the landowner will suffer?’
You need both answers to be ‘no’ to win
your day in court. Alternatively, if the
proposal can be demonstrated as being
unacceptable in planning terms the
operator will not be able to proceed.
Can I get rid of the mast later?
Only if you have agreed a redevelopment
break, and even then, you will need to
give the operator 18 months’ notice.
Additionally, you will have to allow a
“reasonable” notice period in which the kit
will be removed.
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