Supreme Court offers clarity on telecoms code

Legal experts say a Supreme Court ruling on three cases concerning mobile phone operators’ rights under the Electronic Communications Code brings much-needed clarity for when there is an existing mast on a farmer’s land.

The consensus was that the judgment was a win for mobile phone operators, but lawyers believe landowners will also see some benefits because it will provide greater certainty during negotiations.

The Electronic Communications Code was introduced in December 2017 and, since then, lawyers, land agents and mobile phone operators have been locked in tense arguments about how it should be interpreted.

See also: Telecoms court case considers incentive payments

One of the main issues before the court in the three appeals was whether the “occupier” for the purposes of the code should be taken to include an operator who already had a mast on a site.

The meaning of the word occupier is important as, under paragraph nine of the code, new code rights can only be conferred on an operator with agreement “between the occupier of the land and the operator”.

A previous Court of Appeal case concluded that when an operator had already installed equipment on land, it would often be both the operator and “occupier of the land” for the purposes of paragraph nine.

On the grounds that an operator cannot enter into an agreement with itself, the Court of Appeal then concluded that in those circumstances an operator would be precluded from applying for new code rights.

But Anna Mullins of law firm Forsters said the Supreme Court had ruled that an operator who is in occupation of land by virtue of the presence of an existing mast could be distinguished from an owner-occupier and could, in theory, be granted new code rights.

“However, all was not lost for landowners,” she said. “The Supreme Court made clear that modifying current agreements is not permissible. Parties should keep to their original bargains and the new code should not be available to sidestep agreements.”

Modification

Solicitor firm Clarke Willmott said the Supreme Court had drawn a distinction between operators acquiring new rights and modifying existing agreements.

While operators will now be able to acquire new rights under paragraph 20 of the code, they will only be allowed to modify an existing agreement in accordance with part five of the code once the term of the existing agreement has ended.

The court’s judgment was not focused on the issue of payment levels, which has been a real bone of contention for farmers.

There has been anger that since the new code was introduced mobile phone operators have been offering extremely low rental fees to farmers, down from thousands of pounds a year to payments in double figures for 10-year agreements.

A recent report by the Institute of Economic Affairs called for a rethink on how payments are calculated for landowners who host mobile phone masts.

The report said the Electronic Communications Code had changed the basis of land valuation, considerably lowering compensation for landowners, which had led to ill will, costly litigation and severe delays in rolling out the 5G network.