A RECENT Scottish Tribunal result could pave the way for a fairer negotiating position between landowners and operators looking to install or upgrade telecom mast sites on their land.

With more people working from home during the pandemic, demand for reliable and faster internet coverage has only increased, but heightened connectivity goes hand in hand with increased access to land to build masts.

Since the reformed Electronic Communications Code was introduced towards the end of 2017, operators have had the upper hand in negotiating with landowners over accessing their land. The Scottish Farmer has previously reported on some of the ‘bullying tactics’ used by operators to push through agreements quickly.

To hear an update on the current situation, we caught up with Scott Logan, a Managing Associate at legal firm Brodies, who specialises in Utilities and Telecoms work.

“Demand for faster internet coverage is only going to increase, now more people are working from home and particularly with more people looking to relocate rurally,” said Mr Logan. “When the new Code was introduced in 2017, it was intended to speed up the rollout of new technologies by enhancing the powers of operators to access land and upgrade old equipment.

“However, in the past few years there have been multiple cases where operators have taken an aggressive approach, using these extra powers to steamroll landowners in to signing agreements, sometimes threatening them with a Lands Tribunal application to prompt quicker action.”

Mr Logan explained that before 2017 access to a green-field site to install a telecoms mast could typically look to compensate the owners for between four and six thousand pounds per annum, but the new Code has allowed operators to drive rent prices down dramatically. There have been cases, he said, where operators have tried to rush through agreements with landowners being offered rents as low as £100 per annum.

However, a recent court case could spell hope on for the future relationship between the two, with a number of farmers winning a case against the operators who took them to court over refusing to renew existing agreements, in what appeared to be an attempt by the operators to drive down the rents.

The case of ‘EE Limited and Hutchison 3G Limited v Duncan and Others’ ended this September, where all nine applications made by the operators to terminate and renew existing agreements made under the prior code were dismissed. The court found no relevant need for the agreements to be renewed.

Mr Logan explained: “The decision made it clear that it is not enough for operators to just desire a rent reduction to renew an agreement, they have to show that the old agreement is not fit for purpose.

“I am confident that this will set a benchmark which will filter through into future negotiations,” he continued. “The tribunal focused on the fact that the operators could have achieved what they needed by extending and varying the terms, rather than seeking to replace the agreements.”

Mr Logan highlighted that the cost implications involved with a landowner being taken to court by an operator are substantial which is why many people feel rushed in-to making decisions quickly to allow access to their land.

He implored those who might be approached either for the first time or those who may have an existing agreement to not rush in to signing documentation and to seek legal advice to ensure safeguards are included in the contracts to protect their interests.

“The standard form contracts used by operators don’t include important protections for landowners regarding the arrangements and notice requirements for taking , for example what vehicles and machinery will be used, and to ensure minimal disruption during sensitive times of year, for example during lambing or shooting season. Legal advice should be sought to ensure provisions are put in place, to protect the interests of the landowner."

“I am hopeful that moving forward we will see operators and landowners working more closely together and that recent Tribunal decisions will mean operators will put forward sensible proposals at the outset, which will allow for better cooperation in a relationship which has been increasingly polarised of late.”

Electricity roll-out expansion plans

Over the coming decade, Scottish and Southern Electricity Networks (SSEN) plan to improve their Transmission Network in the North East and East Coast of Scotland, reinforcing the existing 275kV overhead line network to enable operation at an increase voltage of 400kV, which will require increased access to land in the region.

Farmers and landowners have been warned that before signing any documentation to grant access to their land, to take legal and valuation advice to ensure that they are compensated fairly for any disruption this might cause to their operations and the value of their property.

Scott Logan of Brodies explained: “With electricity infrastructure comes not only the rights to install pylons but the wide-ranging rights which go along with it. In standard documents, there is typically a right to take access to and from lines over the whole of the wider landholding. In practice, operators will usually take the most sensible route, but landowners should ensure that any agreement specifies which route should be taken and also consider whether or not temporary tracks or trackway should be formed or if ground protection mats are needed to avoid compaction of their ground. Increasingly, clients are also concerned that appropriate biosecurity measures are put in place and complied with."

He also pointed out that additional considerations apply for underground lines to ensure they do not adversely impact on drainage and that particular care is taken with soil handling and excavation.

“Owners in the north east and east coast are being contacted regularly by electricity companies seeking access for surveys and to carry out works, and I would urge them not to sign legal documentation without first seeking legal and valuation advice,” he concluded.