A LANDMARK tribunal result which had raised hopes of fairer negotiation between landowners and the operators of telecommunication equipment has been overturned by the Court of Session.


The case of ‘EE Limited and Hutchison 3G Limited v Duncan and Others’ ended last September with a ruling that there was no need for pre-existing agreements between landowners and telecoms operators to be renewed and amended, potentially ending the situation where such contract reviews were being used to 'bully' site providers into lowering rents.


However, the operators appealed to the Court of Session, successfully arguing that old agreements, where the original term had elapsed, had to be brought into line with the updated Electronic Communications Code introduced in 2017. The new ECC was brought in to enable more extensive mobile phone coverage, better internet connectivity, and faster services, and was interpreted as allowing operators to serve site providers with notices looking to establish new terms of agreement, which in practice often included a substantial reduction in rent.


The Court of Session ruling has now endorsed that interpretation, and quashed the earlier tribunal result. It stated: “The tribunal’s analysis would severely curtail the legislative intention to create the opportunity to bring old agreements into line with new code arrangements.”


The Scottish Farmer spoke to Davidson and Robertson director, Derek Bathgate, about what options are now left to landowners who are approached by operators: “It is decision time for site providers,” he said. “They will need to explore what option they are now going to take if they are to avoid ending up in a land tribunal.
“If you don’t have the intention or ability to redevelop the land where the mast is located and the site operator has met all the obligations and payments you really have to negotiate a new lease or look to sell the land upon which the mast sits.”

 

The Scottish Farmer:

Director of Davidson and Robertson, Derek Bathgate


For removal, Mr Bathgate explained that there are three main options available to landowners wishing to apply for masts to be removed. Firstly, if the operator breaches the contact; secondly if there are persistent delays by the operator in paying rent for the site; and thirdly, if the owner wishes to redevelop the land. Mr Bathgate added that they would have to show planning consent to do this.


“The new code has created a lot of friction between site providers and operators, “Mr Bathgate continued. “There is a balancing act that has to be struck between us all getting better access to mobile signal across the country through these masts leases and making sure landowners are being properly compensated."


He said that since the ECC was introduced, operators have been seeking reductions in rent of around 80%, but farmers are losing out on thousands in the process. The reason for the drop in rental value is that the law states the valuation must ignore the fact that the mast site is being used for telecommunications and therefore the value is based upon its alternative uses.


Due to the rising animosity between site providers and operators, in January, the UK Government launched ‘Access to land: consultation on changes to the Electronic Communications Code’ to explore necessary changes to the ECC.


The consultation stated: “Disagreements about the automatic rights to upgrade and share are undermining relationships between occupiers, site providers and Code operators, and prolonging negotiations. The lack of certainty about the current legislation means upgrading and sharing is not happening as often or as quickly as it could.”


The SF heard that there have been more cases taken to tribunal under the new code in the past four years than there was ever recorded since the old code was created in 1984.


Although a consultation is underway, Mr Bathgate wanted to stress to site providers that this is not a reason to delay exploring their different options in the light of the Duncan appeal and to ensure they seek professional advice in the process.