Aug 12, 2019
Telecoms wayleave obligation.
Due to the great public interest in an effective national telecommunications network, mobile phone operators can require landowners to provide plots for their equipment. However, as with any intrusive rights that can be imposed on the unwilling, the rules that apply before they can be exercised are tightly drawn and interpreted.
A case on point concerned a telecommunications mast located on the edge of an arable field. The plot on which it stood had, for 10 years, been occupied by a mobile phone operator under a lease. The landowner launched possession proceedings after the lease expired, but the operator remained in occupation.
An application was made under the Electronic Communications Code with a view to compelling the landowner to agree a further lease of the plot. The application was made, however, not by the operator, but by a joint venture company which had been established by the operator and another with a view to pooling their resources in the provision of telecommunications equipment nationally.
In dismissing the application, the Upper Tribunal (UT) found that, on a strict reading of the code, it had no power to impose a lease on the landowner. In circumstances where the operator remained in occupation of the plot, the landowner was not in a position to grant a lease to the company. The rights conferred by the code could be viewed as a species of compulsory acquisition, and the landowner could not be made subject to an order compelling it to do something it was unable to do.
The UT acknowledged that the operator’s occupation of the plot was in jeopardy due to the possession proceedings and that, as 50 per cent shareholder of the company, it was unlikely to be hostile to the application. However, the application made no reference to the operator’s rights and the company had long been aware of the landowner’s argument that it could not confer a new lease because it was not in occupation.