The mere mention of the words “telecoms”, “mast”, or even the dreaded (depending on your viewpoint) “Code” can bring out a range of reactions from those involved in the world of real estate.

Yet, as both operators and site providers continue to settle into the world of, and commercial backdrop to, telecoms in the sixth year since the introduction of the no-longer-so-new Electronic Communications Code, it is clear that both sides are finding ways to work together to reach agreement on new site agreements, replacement sites, and even replacement agreements, with greater speed and regularity.

In the months and years following the introduction of the Code in December 2017, there was a dearth of consensual agreements. The resultant spike in Code litigation seems to be subsiding now, with parties more likely to agree terms and enter into new or replacement agreements on a consensual basis. This provides a clear benefit to operators, in that they can install the apparatus they need to install. Site providers avoid the hassle of potential litigation and benefit from the apparatus installed by the operators. The public also benefit, from access to a range of networks and services.

Rollout in Scotland

The benefit to the public can most easily be quantified, with many now regarding access to fast and reliable 4G and even 5G coverage, wherever they are, in the same way as they regard access to other utilities – as a necessity of modern life. Ofcom’s Connected Nations 2022: Scotland report indicates that 83% of Scotland’s landmass benefits from 4G from at least one operator and, with 5G coverage lagging behind that (with geographical coverage ranging from 29% to 51%, depending on the operator), it is clear that the need for additional sites and agreements is not going to diminish any time soon. With that in mind, how can parties seek to smooth the process of agreeing terms?

Take advice

Telecoms is a specialist area, requiring specialist advice, and there are many experienced advisers in the market, who are well placed to provide that advice. Where the cost of doing so is a concern, it should be borne in mind that operators will often be willing to agree to contribute towards the reasonable professional fees incurred by a site provider in connection with a consensual agreement.

When considering potential advisers, site providers seeking to reach speedy agreement on terms will benefit from asking their potential advisers how much experience they have of dealing with telecoms matters on a consensual, as opposed to litigious or contentious, basis. Specialist advice can be particularly useful where site providers are unsure of the terms they can expect to agree and in respect of the key area of consideration (or rent) which can reasonably be expected under a Code agreement.

Engage

It is key that both parties, and their advisers, engage in the process from an early stage. This may include negotiation of the terms for the proposed agreement, discussion as to the appearance of the proposed apparatus, and consideration of other genuine concerns of the landowner, specific to the proposed site. That can extend to the location of the site or appearance of proposed apparatus – for example, where a property owner would prefer the apparatus to be in a slightly different place or to be of a particular colour or type, this may be something that the operator can accommodate where it is raised at an appropriately early stage in the process.

Be constructive

As with any negotiation where the parties are truly seeking to reach agreement, it is essential that both sides take a constructive approach to the heads of terms and the commitment to follow them. From the operator’s side, this can extend to taking account of the site provider’s genuine concerns and being willing to consider departures from their standard form agreement to take account of those concerns. From the site provider’s perspective, it can be helpful to have an appreciation of the operator’s network requirements at the proposed site, in terms not only of its immediate proposed use, but future uses of the site related new or additional technologies as these become available.

Striking a balance

In cases where the parties are able to consensually agree terms, it is suggested that approaching the negotiation with these points in mind may speed up that process, allowing the relevant infrastructure to be installed in a way which strikes an appropriate balance between the interests of both parties, and gives members of the public access to a range of networks and services. While there will be occasions on which a consensual agreement is not possible, with land or building owners feeling compelled to resist the installation of apparatus on their property in a tribunal, it is suggested that consideration of the points set out above may assist parties in narrowing the disputed issues even in that context.

The article first appeared in Estates Gazette egi.co.uk on October 10, 2023.