9165 - BM Outlook 2022 R6 - Flipbook - Page 32
“Because a few cases have not gone
the operators’ way, they have been
lobbying government for further
change to the Telecoms Code to block
what they would regard as loopholes”
The law according to telecoms operators – a complex battleground in which
professional advice is essential.
Few subjects have been as contentious
in recent years as telecoms, where
the Government’s bid to provide faster
mobile and internet access has had a
huge impact on landowners with sites
in suitable mast locations.
“The Government’s objectives aren’t really
succeeding because landowners are
feeling pressured into deals that they don’t
like and are causing problems where they
can, even though, at the end of the day, the
operators have the law behind them.”
The subject has become a complex
battleground of tribunal decisions, court
cases, appeals and new legislation, and
an area where taking expert advice is
the only way forward.
But while the basic framework of
payments is fixed, taking expert advice
from the Batcheller Monkhouse team
can still improve the offer and can also
make sure that the landowner retains as
much control over his land as possible.
“The terms of the deal and issues such
as access can be as important as the
rent,” Rob pointed out.
It is also an area in which Batcheller
Monkhouse has become known for
its expert knowledge, not least because
Tom Bodley Scott, Head of Telecoms
at the firm, acted as expert witness on
several cases in the Upper Tribunal that
agreed the way forward for the way in
which payments are made by operators
to landowners.
In short, rents, which used to offer a fair
return for landowners, are now based on
the value of the land to the owner, rather
than to the telecoms operator. It is a
rare reversal of the ‘demand and supply’
argument that has underscored the free
market for centuries, but it means a soggy
corner of a field must be valued as such,
regardless of how important it might be to
the operator looking to take advantage of it.
“Batcheller Monkhouse has become
the ‘go to’ firm for telecoms issues and
has been acting on behalf of three new
clients a week on average,” explained
Rob Hepworth.
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The worry now is that despite holding
most of the cards already, operators are
trying to make further changes to the
existing legislation following a number
of small victories scored by landowners
over the past few years.
“Because a few cases have not gone the
operators’ way, they have been lobbying
government for further change to the
Telecoms Code to block what they would
regard as loopholes,” he said. “This
has reached the committee stage in
Parliament, although it is getting a bit
of a hard ride, with a case involving one
of our clients being highlighted by New
Forest West MP Sir Desmond Swayne
during the Bill’s second reading.”
“My worry is that any further changes to the
law at this stage, apart from the fact that
they are designed to benefit the operators
Rob Hepwor th
Associate,
Tunbridge Wells
even further, will cause even more
confusion on a subject people are finally
starting to get to grips with. We’ve had
enough uncertainty since the Code was
introduced three-and-a-half years ago.”
“Operators will inevitably quote the cases
that suit them, and so having someone
who can counter that by referring to other
recent case law can often ensure better
terms, including a higher rent, are agreed.”
The Batcheller Monkhouse team has
spent that time studying the legislation
and the unfolding case law closely, and
have the experience to tell when an
operator is offering a fair deal and when
negotiation is likely to prove fruitful.
With Batcheller Monkhouse having now
acted for more than 660 landowners,
some operators are actively approaching
the firm to offer ‘sweetheart’ deals to
landowners that can be agreed now,
even though the operator’s situation may
be improved by the legislation currently
being debated. “They want to engage
with us because of our large client base
and our expert knowledge in this field,”
explained Rob.
One infrastructure provider recently
offered a Batcheller Monkhouse client
an upfront payment for a 30-year lease
of a mast site for £49,000. Following the
telecoms team’s intervention, that figure
has now reached £100,000.
The team also enjoys plenty of bargaining
power because of the number of telecoms
clients it has. “Because we act for lots of
people, the operators are keen to engage
with us because they know we can
influence a large number of landowners if
they come up with a fair deal that can be
replicated elsewhere,” Rob commented.
“We sit down and talk to operators roughly
fortnightly and get to see the whites of
their eyes. We know if they are putting
forward a silly offer – and they know we
know. Again, it’s not just the rent, but
the terms that are important, along with
issues such as rent review periods, mast
height restrictions and the like.
“We have encyclopaedic knowledge of
case law, not least because we acted for
the landowners in many of those cases.
The other good news for landowners is
that advice from Batcheller Monkhouse,
or another company, will be paid for
by the operator, as long as it ends in
a consensual deal. It doesn’t, though,
apply to litigation costs associated with
going to court.
That case also agreed that operators
must pay for the disturbance caused by
apparatus being installed and decided that
if an operator needed to be accompanied
during out-of-hours access, the landowner
should be paid £50 per hour.
Another recent case has established that,
in certain circumstances, it is reasonable
for the landowner to require that any
increase in mast height should be subject
to the consent of the owner, although
that consent should not be unreasonably
withheld or delayed.
Other cases have established that rents
agreed under a scheme to improve the
emergency services network were not
unduly generous, at £1,750 to £2,500
per annum, and that additional ‘early
completion incentive payments’ of up to
£15,000 amounted to ‘window dressing’,
with the cash actually representing “a core
component of the financial package”.
Recent telecoms cases have established
that it is “very difficult” to envisage a
reason why a landowner could deny
an operator a right to undertake a
Multi-Skilled Visit, something which
landowners need to bear in mind when
they are first approached.
A case heard by the Lands Tribunal for
Scotland also established the principle
that different owners can be affected
to a greater or lesser extent by the
access arrangements granted to the
operator, depending on the use of the
land or building.
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