BM Rural Outlook E-FINAL Spreads - Flipbook - Page 33
30 | Rural Outlook Issue 21
Telecommunications | 31
Mast rental agreements –
unlocking the log jam?
While mast rental agreements are once again being
made between landowners and mobile telephone
operators, it is as important as ever that the landowner
thinks twice before simply going with the flow and
takes expert advice before signing on the dotted line.
#SpeedUpBritain saw the Government
respond by launching another round of
consultations on improving engagement,
but while it set out to tackle a number of
problems, it excluded any discussion on
the actual valuations being handed down
by the Upper Tribunal.
After a difficult three years in which
the whole process of negotiating new
sites pretty much stalled, the floodgates
are beginning to open, but aggressive
operators don’t quite hold as many of the
cards as they think they do, and taking
advice from the right professional will
almost certainly be a worthwhile move.
In the meantime, things are finally
moving. Having agreed no deals in
the previous three years, Batcheller
Monkhouse has already negotiated
about 15 in the three months of 2021
and is confident that the system is now
starting to settle down. Our hope is that
the consultation won’t derail a process
that is slowly finding its way.
True, that advice won’t roll back the
clocks to the ‘good old days’ when
landowners could bank on earning
around £6,000 a year for allowing an
operator to erect a mast in the corner
of a relatively unproductive field, but it
will make sure the telecoms company
doesn’t ride roughshod over the rights
of the farmer or landowner.
After seeing much lower
rents agreed in the Upper
Tribunal, the telecoms
equivalent of the High
Court, operators are
beginning to push their luck
Rents have plummeted following new
legislation, introduced at the end of
December 2017, that essentially saw
the balance shift dramatically in favour
of the mobile phone companies. In a
nutshell, the Code, as this legislation is
called, ensures that the rental payment is
now based on the cost to the landowner
rather than on the value to the company.
The aim was perhaps laudable. The
Government wants to help operators roll
out better and faster phone and internet
access, and landowners in the main
have no issue with that approach. After
all, increasingly high-tech farmers use
as much internet as anyone else these
days, and many of them have diversified
into providing office space that similarly
depends on a good connection.
The problem is that after seeing much
lower rents agreed in the Upper Tribunal,
the telecoms equivalent of the High
Court, operators are beginning to push
their luck. Many are claiming rights that
they don’t have, and others are citing one
example as giving them carte blanche
in every other case.
The process has been further
complicated by the fact that industry
pressure that culminated in a high-profile
campaign inspired the Government to
launch another consultation process that
could further muddy the waters around
Former Secretary of State for Trade
and Industry Patricia Hewitt chaired the
#SpeedUpBritain campaign that was
launched by the operators after they
decided landowners and their agents
were causing delays.
Batcheller Monkhouse played a major
part in supporting the landowners
involved in the three main Upper Tribunal
cases in providing opinion and valuation
evidence. It means we are aware of the
thinking behind the decisions and the
extent to which any precedents can be
relied on in other situations.
Those three cases showed clearly how
the rent agreed for a site will reflect
individual circumstances and take into
account the following elements:
• The value of the land or the most
valuable alternative use (assuming
the landowner can demonstrate
demand for a viable use)
• The value of the benefits the owner
can offer the operator (such as the
right to use adjoining land or to have
early break rights)
• The value of the burdens that the
owner will suffer from the grant of
It is also common for the operator to
offer the landowner an incentive to avoid
going to the Tribunal, often referred to as
an ‘early completion incentive’.
It was towards the end of last year that
the Tribunal decided that the rent paid for
a mast site should be based on the sum
of those three elements.
The guidance put no limit on the amount
of equipment that could be installed,
allowed unlimited sharing and decided
that most “greenfield” sites were worth
between £750 and £1,500pa, reducing
landowners’ potential income at a stroke.
Turning to the three key cases in which
Batcheller Monkhouse was heavily
involved, in the case of Cornerstone
Telecommunications Infrastructure Ltd
London & Quadrant Housing Trust, the
Tribunal awarded a rent of £5,000pa for
a new rooftop letting.
In the case of Vodafone v Hanover
Capital, a rent of £5,750pa was awarded
for a greenfield site because it was a
renewal under the Landlord and Tenant
Act 1954 (LTA) and because the site was
shared by more than one operator. It is
interesting that as a result of this case,
which didn’t go down well with operators,
one of the things ‘up for grabs’ in the
recent consultation was removing the
involvement of the LTA in future deals.
The third case, between On Tower UK
Ltd and JH & FW Green Ltd, known as
“the Dale Park Case”, resulted in a rent of
£1,200pa being awarded for a greenfield
site because it was a renewal under the
Code and because the site was located
close to the landowner’s residential
property. A far cry from the £6,000pa
previously on offer, this may come to be
considered a relatively good settlement.
With such a wide variation in rents and
considerable downward pressure from
operators that feel they have Government
and legal backing to drive a particularly
hard bargain, landowners need to seek
help from an expert – and preferably
one with first-hand knowledge of the
It is not just the rent that should concern
landowners but the conditions under
which the operator is allowed to access
the land and use the facility, and this is
where some are claiming rights they don’t
have, and which need to be challenged.
Landowners want to support the
Government’s objectives but feel that the
whole matter is out of balance. They are
worried that operators are being allowed
to ride roughshod over their property and
business interests in what many feel is
tantamount to a ‘land grab’.
In reality, operators can be persuaded
to toe the line, and while farmers have
less influence over the rent they receive,
they ought to be able to control the
terms under which operators access
the site and use it. Bear in mind, though,
that saying “no” is not an option.
Operators in effect have compulsory
powers over suitable sites and will
simply go to the Upper Tribunal if a
landowner refuses to negotiate.
The recent consultation on improving
engagement between operators
and landowners, meanwhile, at least
highlighted some of the issues.
One client responded: “We are a resident
freehold company of a block of flats
with an 02 mast on the roof. We wish we
had never agreed to it. Our experience
with dealing with 02 at the time of the
last renewal and at the time of antennae
modifications has been awful.
“They tried to push through modifications
to the antennae that were not structurally
safe and could have damaged our building.
They threatened us with legal action.
Luckily we have a structural engineer on
our Board. After months of negotiation
and continual threats of legal action from
them, he was finally able to persuade
them to modify their faulty drawings.
“We were on Revision H by the end. We
needed to employ lawyers to counteract
their threats, costs mounted. It took more
than a year for them to admit their mistakes
and agree to pay our legal and engineer’s
expenses. We would not want them to
have more powers over our building.”