A recent ruling by the Upper Tribunal (Lands Chamber) in London means that UK mobile and broadband operators will effectively have to pay landowners of rural greenfield mast sites significantly more to place their masts, with the typical rental for such sites being expected to rise from £750 to £1,750 per year.
In the past it was often landowners that would extract highly lucrative rental agreements in return for allowing telecoms operators to deploy infrastructure on their land (e.g. mobile masts, trenches for optical fibre etc.). But this often made it too expensive for network operators to expand their coverage as much as they would have liked and thus inhibited the roll-out of new services.
The government attempted to correct this in 2017 by revising the Electronic Communications Code (ECC) to make it easier and cheaper for operators to access public or private land (here). But that initially swung the problem in the other direction (here and here) and resulted in some providers, particularly mobile operators, trying to force the adoption of dramatically lower rents (sometimes slashing rents worth thousands to just a few tens of pounds).
Since then various tribunal rulings and wider political efforts have been made to find a fairer balance, which has had some modest success (here and here), although experiences do vary. The latest case, which concerned the renewal of a lease for an existing site – at Vache Farm near Chalfont St Giles in Buckinghamshire (AP Wireless were the landlord) – that EE and Three UK were using (tenants), feeds into all that.
The site itself has three-phase power and two separate fibre optic connections for backhaul data capacity. The equipment on site is a 20 metre high lattice steel mast, standing on concrete, to which are fixed a number of antennae and microwave dishes. At ground level several cabins house electricity and telecommunications apparatus. The site is used for mobile network services operated by all four primary providers.
In terms of the rental value for such sites, a previous decision by the Upper Tribunal over a similar site (Dale Park) in 2020 had pegged the figure at around £750 per year. Telecoms operators have since taken this as somewhat of a standard level, while landowners that challenged it were often faced with the high risk and expense of needing to go to a tribunal. But the new case has hand landlords another modest victory.
Upper Tribunal (Lands Chamber) Ruling
The more onerous burdens accepted by a landlord entering into a lease of the Site on the new terms, by comparison with an agreement for a noise monitoring or similar low intensity or passive site, are: the potential difficulty of regaining possession for redevelopment at a site which enjoys statutory security of tenure; greater regular access by multiple operators and the anticipation of significant additional access and activity involved with future upgrade work; the rights to use adjacent land for set-down and to undertake tree lopping. We agree with Mr Williams that a landlord would take a high level view of them, rather than make a detailed assessment. However, we consider that he has been over generous in his assessment of a high level adjustment of £1,350, on top of £500 for size, especially having accepted that his base level of rent would already account for some benefits and burdens.
We nevertheless give weight to Mr Williams’ opinion because of his extensive and relevant experience in the rural market, and we use our own experience of that market in making this determination. We are persuaded that the Tribunal’s earlier figure of £750 was too low and should be reconsidered, not only because of inflation but in the light of the evidence of non-telecommunications transactions for unexceptional rural sites. That material, heavily adjusted though it necessarily is having regard to the artificial paragraph 24 hypothesis under which the valuation must be carried out, enables us to conclude that the appropriate annual consideration for a rural mast site is £1,750.
We do not consider it necessary to update the table of figures in Affinity in January 2022, nor to identify any particular relativity between consideration for rural sites and those in other situations, other than to reiterate the impact of inflation on figures determined in previous years.
The decision isn’t merely about one single site and could open the door to a review of many prior rental agreements, such as for the original Dale Park decision in 2020 and all those that followed it. The tribunal also appears to be suggesting that inflation should apply to the agreed rents, which is a view that could be applied to different site types too.
Paul Williams of Carter Jonas (witness for APW in the case) said:
“Not only did the tribunal agree that the Dale Park decision needed to be looked at again, but it also informed us that the door isn’t shut if new evidence which does not offend the statutory basis of value for telecoms emerges. Aside from market evidence, the tribunal also sent a clear message that inflation should apply, including to those for other site types, such as rooftops.
This will make a huge difference to many landowners who host telecoms sites, especially in rural settings, where the tribunal was persuaded that a greater-than-inflation increase should apply.
This isn’t about extracting huge amounts of money from the operators; it’s about receiving a payment that is reasonable for the rights that are being granted, and the burdens that inevitably come with hosting telecoms, rather than a less intrusive tenant, or more passive use.”
The tribunal also determined a disputed right of the landlord’s ability to break any agreement for the purpose of redevelopment. AP Wireless’s position was that, as provided for by the Code, notice could be given to the operator in the event that they wished to redevelop, and could not do so with the agreement in place.
Mobile operator EE had attempted to argue that any break should not include redevelopment for the purpose of telecommunications itself. EE was concerned that as AP Wireless had a group company that developed telecommunications infrastructure, they could effectively be displaced by such development.
However, the tribunal declined to award such a pre-condition, principally as the Code itself was not drafted in that way (i.e. mobile operators will not get special protection). It was also determined that any intent to develop need only be shown at the date of any termination hearing, rather than at the point of break notice. In effect, this provides landowners with an 18-month period to secure the necessary evidence to succeed in terminating an operator’s rights.
Suffice to say that deploying new masts on this type of rural site just got a bit harder and more expensive for mobile operators, which could have an impact on some of their 4G and 5G roll-out plans. We’ve asked the trade body for mobile operators, Mobile UK, to comment.