The answer of course lies with the rights granted to operators under "The Code" and "Code Powers".
While it is fair to say that the majority of landlords and their advisers are now aware of the existence of the Code (it celebrated its 30th birthday last year), there does still appear to be some mystery surrounding the actual provisions.
The Telecommunications Act 1984/The Communications Act 2003
Back in 1984 when the Telecommunications Act came into force, the Government was seeking to develop the telecoms industry and stimulate investment in building new networks. It was therefore agreed that some legislation would be required to make it easier for these networks to be built.
The overriding principle behind what became known as "Code Powers" was the right of the public to have access to an electronic communications network/electronic communications services (the reference to "electronic" communications came in with the 2003 Act). This is a recurring theme throughout the legislation. It was in effect giving telecoms similar rights to other utilities to ensure that equipment could be installed across both public and private land.
In summary, Code powers are statutory entitlements for specified telecoms operators to have the right to install, maintain, adjust, repair or alter their apparatus on public and private land.
In order to have the benefit of these rights, the telecoms provider must apply to and be recognised by OFCOM. A list of providers with Code Powers can be obtained from the OFCOM website.
The Code, which is contained in Schedule 2 to the Telecommunications Act 1984 as amended by the Communications Act 2003 contains a number of powers, but for the purposes of this note, I am focusing on the powers in relation to proposed redevelopment and termination.
Paragraph 20: Right to Require the Alteration of Apparatus
Paragraph 20 of the Code gives a landowner/landlord (or any person with an interest in land affected by communications apparatus) the right to require the operator to alter the apparatus in order to allow the landowner to carry out an improvement on its land. "Alteration" is helpfully defined to include moving, removal or replacement of the telecoms kit and "Improvement" is defined to include both development and change of use. So if the landowner requires the alteration in order to carry out the improvement, he can serve a notice on the operator to that effect.
The Code provides that the operator has a 28 day period in which to object by serving a counter notice. So long as the counter notice is served, the operator is not required to make any alteration to its equipment unless required to do so by a court order which must be obtained by the landowner.
At this stage, the overriding principle of the right of the public to have access to a communications network comes into play and the court has to have regard to all of the circumstances and to this principle in making its decision. A court has to be satisfied that the alteration is necessary to carry out the relevant improvement and will not substantially interfere with the service provided by the operator. The general rule is that the court order will require the landowner to reimburse the operator's expenses in carrying out the alteration.
Paragraph 21: Right to Require the Removal of Apparatus
A Paragraph 21 Notice is required where the landowner is seeking the removal of the communications equipment. This paragraph applies where the landowner is entitled to require removal. The main reasons are:
- the Lease/Agreement has expired;
- the Agreement contains a forfeiture or irritancy clause and there are grounds for termination;
- the Agreement contains a break clause for early termination; or
- the Agreement contains a lift and shift provision providing for termination so long as an alternative site is provided.
Once again, if the operator wants to remain on site, they have a 28 day period in which to serve a counter notice and, in this case, the counter notice must state that the landowner is not entitled to require the removal of the apparatus and/or specify what steps the operator intends to take to keep the apparatus on the land. As with Paragraph 20, if a valid counter notice is served by the operator, then the apparatus can only be removed if a court order is obtained by the landowner.
The court can only order removal if it is satisfied that the operator is not intending to take the steps specified in the counter notice or is unreasonably delaying in so doing, and that the steps will not be successful in giving the operator the right to remain on site. If an order for removal is granted, then there is no requirement for the court to order the landowner to pay the costs and, where the operator fails to remove, the landowner can apply to the court for authority to carry out the works itself and recover their expenses from the operator.
While it can be seen that both of these paragraphs provide the operators with a substantial power to remain on site, the general practice to date has been that the service of a counter notice by the operator is simply a means to protect the operator's position and, in the majority of cases, a compromise will be reached by the parties to allow the operators to remain/relocate to a location which is satisfactory for both parties.
The Code specifically provides that an operator cannot exclude/contract out of the rights under Paragraph 21. There is no similar prohibition in respect of Paragraph 20, although most commentators agree that the right cannot be "contracted out" in its entirety. However if a landlord can negotiate terms into the Lease to exclude service of a counter-notice or perhaps more realistically to provide for relocation in the event of a proposed redevelopment, these clauses should be taken into account by any court being asked to grant an appropriate order.