Wayleave agreements and the Electronic Communications Code

Wayleave agreements are rarely treated with much importance because they often look like simple documents with no real legal consequences, but don’t be fooled by it. 

Wayleaves actually have quite a wide-ranging effect and can hold up development sites if you are a landowner looking to build a new property on land with a wayleave running underneath which has not been properly terminated.  

Typically, a wayleave is a legal agreement entered into between a landowner and a utility company (often for things like high-speed broadband cables). They are designed to permit the telecoms company to install, access, maintain and operate their cabling (otherwise known as electronic communications apparatus) on private land and are normally entered into on a voluntary basis in return for a small fee.  

We set out below a number of frequently asked questions to help landowners understand more about wayleaves for those times when they encounter them.  

What form does a wayleave agreement take? 

A wayleave agreement is usually prepared in the telecom companies standard form, subject to reasonable amendments requested by the landowner. The agreement will typically set out: 

• the rights granted to the operator 

• access arrangements and notice requirements 

• the location of the apparatus 

• insurance and indemnity obligations. 

Often, the agreement is only a one- or two-page document which makes it look pretty innocent and they are often signed by site managers or other management type personnel without it being reviewed by the proper channels in the same way as more heavyweight legal documents generally are.  

How does the Electronic Communications Code (ECC) affect wayleave agreements? 

The most common mistake when dealing with wayleaves is a failure to understand that, as innocent as the paperwork may appear, a landowner is actually granting a telecoms company statutory rights when signing the piece of paper to allow the cabling to be installed.  

Whenever anything is signed with a telecoms company (assuming they are a network operator registered with Ofcom to provide an electronic communications network), the agreement will automatically fall under the Electronic Communications Code (ECC), contained in Schedule 3A to the Communications Act 2003.  

The ECC gives the telecoms companies certain statutory rights to install and maintain communications networks and is intended to support the rollout of digital infrastructure across the country. 

The effect is that, once granted, the wayleave then can only ever be terminated by following the eviction process in the ECC (which can be a long and costly process). It also means that the telecoms company benefits for certain statutory rights, permitting them to share their equipment with other telecoms operators free of charge and to upgrade their equipment without landowner consent. 

What payments (if any) are landowners entitled to receive? 

Landowners may be entitled to a fee usually (albeit this is nominal) for granting rights and compensation for any loss or damage arising from the exercise of the operator’s rights. Valuation under the ECC follows a statutory “no-network” basis, which differs from traditional market rent principles and means that any fee paid is usually very low indeed.  

Can a wayleave agreement be imposed on a landowner? 

Yes. If agreement cannot be reached voluntarily, a telecoms operator may apply to the Upper Tribunal (a specialist property court) for Code rights to be imposed under the ECC. The Tribunal may grant those rights where the relevant statutory tests are satisfied, and the public benefit outweighs any prejudice to the landowner.  

This means that telecoms companies benefit from a type of compulsory acquisition in that they can force their way onto anyone’s land whether they co-operate or not.  

What should landowners consider before signing? 

Landowners should carefully review the proposed rights, access arrangements, upgrading and sharing provisions, and any impact on future use or development of their land before entering into a wayleave agreement. 

The Code states that any agreement must be reasonable, giving a landowner a right to insist on reasonable changes being made to the document before signing to best protect the landowner’s interests.  

For further advice in relation to wayleave agreements, please contact a member of Birketts’ telecommunications team.