Telecommunication equipment: the hidden risks housing providers might be exposed to

Telecoms equipment on housing estates can affect redevelopment, acquisitions and long-term asset management. Yet registered providers and local authorities may not realise either the extent of the rights available to telecoms operators or that the operator will often meet the landowner’s reasonable legal costs.

A mobile phone mast, fibre cable or other telecommunications equipment on housing stock can create legal rights capable of affecting how that land is managed and developed.

For registered providers and local authorities, the issue may only become apparent when a notice arrives, a redevelopment project is already under way or a site containing telecoms infrastructure is being acquired. By that stage, the consequences can be significant, as telecoms operators have extensive statutory rights under the Electronic Communications Code. These can affect land ownership, redevelopment plans and estate management, and in some circumstances, operators can seek rights to install and maintain equipment even where the landowner has not agreed terms voluntarily.

There is, however, an important point for housing providers to be aware of from the outset. In many cases, telecoms operators are required to meet the landowner’s reasonable legal costs of negotiating telecoms agreements. Specialist advice can therefore often be obtained without the housing provider having to bear significant legal expenditure itself.

When should housing providers seek advice?

Issues with telecoms equipment can arise in a number of different situations. Registered providers and local authorities should consider seeking specialist advice where:

• they have received a notice from a telecommunications operator
• an operator is seeking permission to install equipment on a roof, estate or development site
• existing telecommunications equipment may need to be moved or removed as part of redevelopment or regeneration
• they are acquiring land or housing stock containing telecommunications infrastructure
• they have existing telecommunications agreements and are unclear about the rights currently enjoyed by the operator
• an operator has approached them about renewing or varying an existing agreement.

Identifying the issue early can provide considerably more scope to protect the provider’s position.

Telecommunications operators have unique legal rights

Under the Electronic Communications Code, telecoms operators regulated by Ofcom benefit from property rights that are not available to most commercial occupiers. These rights can apply to a wide range of infrastructure, including rooftop masts, fibre optic cables and roadside equipment. Importantly, the organisation occupying the land may not always be immediately recognisable as a telecommunications operator, meaning potential Code rights can be easy to overlook.

One of the most significant powers available to operators is the ability to seek compulsory rights to install and maintain telecommunications apparatus on land.

Where agreement cannot be reached, an operator may be able to apply to a tribunal for rights to be imposed. If a landowner receives a formal notice and does not engage with the process, proceedings may continue and the landowner can lose valuable opportunities to influence the terms on which those rights are granted.

Received a telecoms notice? You need to act quickly

A telecommunications notice will often require a response within 28 days. This makes effective internal escalation crucial. A notice left with an estates, property or housing management team until the deadline approaches can leave considerably less time to understand the implications and respond appropriately; and failure to engage promptly may lead to tribunal proceedings being issued and can reduce the registered provider or local authority’s ability to negotiate terms voluntarily.

Housing providers should therefore have a clear process for identifying telecommunications notices and escalating them for specialist advice as soon as they are received.

Redevelopment plans can be affected for years

The presence of telecommunications apparatus can become particularly important where a housing provider intends to regenerate or redevelop a site. Once rights have been established, a landowner may not be able to require equipment to be removed simply because redevelopment is proposed. Instead, it may be necessary to demonstrate a genuine redevelopment scheme and satisfy the relevant legal requirements before removal rights become available.

Telecoms rights should also form part of acquisition due diligence

The issue is equally important when acquiring land or housing stock. Infrastructure that appears to be associated with an ordinary commercial occupier may benefit from statutory telecommunications protections, and understanding what apparatus is present, what agreements exist and what rights the operator may have can therefore be an important part of assessing the future use of a site.

Identifying those issues during due diligence can help housing providers avoid unexpected restrictions, additional costs or delays to future development plans.

Specialist advice may be available at the operator’s cost

For housing providers concerned about the cost of obtaining specialist advice, the Electronic Communications Code contains an important protection. In most cases, telecommunications operators will be responsible for paying the landowner’s reasonable legal costs associated with negotiating telecoms agreements.

This means registered providers and local authorities can often obtain specialist advice on the proposed agreement, protect their position and negotiate appropriate terms without bearing significant legal expenditure themselves.

Given the potentially long-term implications of granting telecommunications rights, taking advice at the outset can be considerably more effective than trying to resolve problems once rights have already been established.

What should housing providers do next?

Telecommunications equipment does not have to create a problem for housing providers, but it should not be overlooked. Early advice can help you understand the rights affecting assets, respond appropriately to notices, protect redevelopment opportunities and identify potential issues before acquiring new sites.

If you have received a notice from a telecommunications operator, are considering redevelopment of a site containing telecommunications equipment, or want to understand whether existing apparatus could affect future plans, our specialist telecommunications team can advise on the next steps.