Mast sites – it just gets worse for Landlords.
Authored by Ted Mercer, Partner in Maddox Legal’s Litigation department, with an expertise in telecommunications and technology start-ups.
Though there has been the odd case that has helped landlords, the majority of cases under the new Electronic Communications Code in the UK have gone in favour of the Mast site operator or mobile operator. Another one has come out recently. The latest has just appeared from the Court of Appeal. It rejoices in the title of On Tower UK Ltd-v- GH & FW Green Ltd  EWCA Civ 1858.
The case is on the face of it, a simple interpretation case of paragraphs of the relevant legislation dealing with questions related to insertion into new leases of provisions permitting alternation, enlargement, extension and addition etc of operators.
That must be added to the list of things which landlords can’t do under the code such as, get a proper rack rent for the Mast site that reflects the amount of money the mobile operator makes out of the site. Mast sites can be thrust upon landlords. Though there are some ways in which landlords can fight back, the operators have in the majority of cases been singerly unsuccessful. There is one case waiting to get to the Supreme Court but I wouldn’t hold your breath.
This is so particularly, when interpretation of the code seems in a number of Judges minds to be heavily influenced, not by the words on the page but by what preceding law commission reports etc, thought should happen.
I remember, as a regulator back in 1985, being briefed by the DTI (as then was) on the passage of the Telecommunications Act 1982, thorough the Commons. This was the act of parliament that effectively liberalised telecoms in the United Kingdom and set up a licensing and regulatory system of a far-reaching type then practically unique in Europe. I was told, however, in no uncertain terms by the DTI, that the majority Commons time in respect of the Telecommunications Act 1982, was spent debating what is now the Electronic Communications Code.
The code was then based on the power given to the Post Office in and around 1949 to install apparatus. I am afraid, you have to be as old as me to remember Post Office vans that were green and therefore dealt with Telephony rather than Red which dealt with Post. There was, not inconsiderable outrage at what looked like a proliferation of telecoms operators being given code powers to enter into property thus significantly affecting the proposition that an Englishman’s home is his castle.
I want to point out now that the period from 1982 to date has been characterised by the significant progress of Telecommunications provision in the UK, in particular, in respect of mobile telephony and generally mobile communications. That progress in the period to 2018, seems to have been suitable meteoric.
However, the mobile industry succeeded in convincing the Law Commission and the Government that without even more powers in respect of gaining entry to land, they would have to give up too much of their profits which would affect investments costing them time and money to have to deal with these pesky landlords who are all terribly difficult etc.
I appreciate that the code had significant problems before it was changed, not least of which was a fear on both sides of the fence of some County Court Judge deciding what would effectively be a national tariff for Mast sites and Wayleaves. There was, in short, a remarkable small amount of jurisprudence for the size of the problems. That situation has reversed with a new code which has seen a flurry of litigation and most of it, as I say, coming down in favour of the operators.
Given that the mobile industry has had considerable help deliberately and by accident, over the years, in respect of, for example, protection from certain technologies (notably GSM gateways) and protection from the strictures for Competition Law because nobody could effectively deal with a joint monopoly position.
So, what can you do if you’re a landlord? Well, the answer is somewhat vague and it is “box clever”. Use the rules in particular, the specific rules related to specific technologies like 5G. Head on head butt clashes with the Mast site providers are proving not to be a great concept as looking at the string of Lands Tribunal upper chamber cases, will tell you. In the odd occasion where landlords have thought clever and indeed thought early, they have been more successful.
To get in touch with Ted, please email him at firstname.lastname@example.org