Sharing is (not?) caring: telecoms operators win wider powers to share apparatus
Recent telecoms cases have shown increased acceptance by courts of wider sharing powers for telecoms operators.
Telecoms operators like to share apparatus. It is an expensive and time-consuming process to identify a new telecoms site, overcome legal and regulatory obstacles and local objections, build the mast and bring it online. By sharing, network providers can benefit from the convenience of existing apparatus without hassle or having to compete for valuable site space.
The government likes operators to share apparatus. The government strongly encourages the sharing of infrastructure, to ease the roll-out of 5G across the country, reduce costs to consumers, make efficient use of existing sites, and avoid cluttering the landscape with duplicate masts. The National Planning Policy Framework and the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 both encourage operators to share sites wherever possible.
Landowners do not like operators to share apparatus. They are often concerned about the impact that sharing will have, including the additional cost, inconvenience and administrative burden of managing extra contractors on site; safety, safeguarding and security concerns caused by unknown third parties; and unsightly additions to existing apparatus.
Sharing provisions in telecoms leases are therefore hotly contested, and the Tribunal has had to grapple with the competing arguments of landlords and operators since the new Electronic Communications Code was introduced. Since then, the Tribunal's attitude has gradually shifted away from landowners in favour of operators and sharing is now very much an embedded feature of the telecoms landscape.
Sharing under the Code
The Code sets a minimum amount of sharing which telecoms operators will always be allowed to do. Under paragraph 17 of the Code, a licensed operator may always share apparatus with any other licensed operator, provided that the sharing does not adversely affect the appearance of the apparatus and does not impose any additional burden on the landowner. Any agreement to the contrary is void.
This is a minimum standard. Parties can agree to let licensed operators share with unlicensed operators, or to share apparatus even if it affects the appearance of the apparatus or imposes an additional burden on the landowner. Where the parties cannot agree wider sharing rights, operators can ask the Tribunal to include such a term in a new lease. (CTIL v London & Quadrant Housing Trust [2020] UKUT 0282 (LC) at [77])
It is now well-established that it is for the operator to justify any broader sharing rights than those granted by paragraph 17 of the Code (CTIL v University of the Arts [2020] UKUT 248 (LC) at [188]). However, there is no presumption that an operator will be limited to the paragraph 17 floor, nor any need for the operator to show particularly compelling reasons to move beyond the paragraph 17 floor (On Tower UK v JH & FW Green Limited [2021] EWCA Civ 1858 at [62]).
If the Tribunal does agree to allow broader sharing rights, it must include terms in the lease to ensure that the least possible loss and damage is caused to the landowner (Code paragraph 23(5)).
A shift in attitude
The Tribunal has been asked on a number of occasions to award sharing rights which go beyond the floor created by paragraph 17 of the Code. With each decision, the operators have refined and expanded their arguments and the Tribunal has become more accepting of wider sharing rights. This gradual shift can be seen from a handful of illustrative cases.
Cases:
Conclusions
Recent decisions make clear that sharing is now an accepted part of the telecoms landscape and that operators are likely to secure rights to share apparatus with an unlimited number of licensed and unlicensed operators.
Landowners can still oppose unlimited sharing rights but they should consider their positions very carefully and take early advice before doing so. In the meantime, there are some things which landowners should consider when facing a request to share telecoms apparatus:
- Landowners will need to be able to articulate and evidence their concerns, and show that the impact of sharing is real rather than fanciful. Overstated or unevidenced concerns will be given short shrift.
- Landowners will need to identify disruptions which go beyond mere inconvenience or disturbance to business activities. Low level disruptions can be accounted for in rent. High impact but improbable disruptions can be compensated for later if they occur.
- But, where extra burdens can be compensated with money, it's important to make provision for that, in the rent or in standalone compensation provisions. Specialist valuation advice may be needed.
- Site sensitivity is not, of itself, a reason to prevent sharing. Landowners should instead consider whether safeguards, such as information sharing or veto powers, will be sufficient to protect against any unusual sensitivities.
- Landowners need to carefully consider whether the other terms of the agreement, wider planning or regulatory frameworks, or the physical nature of the site, already give sufficient protection against the burdens of oversharing. If they do, the Tribunal is unlikely to limit sharing.
- Owners of residential sites may have more success showing that the impact of sharing is too great. On the other hand, government bodies may be less capable of doing so, given the government's drive to encourage sharing and the use of public buildings.
If you're a landowner and want advice on telecoms apparatus on your land, please contact Philip Sheppard in our Property Litigation team.