7
Jul
2005

Mast can become squatter

Jul 6 2005

by Richard Freeman-Wallace, The Journal Newcastle

Mobile-phone masts are multiplying but shrinking. They are being disguised as chimneys, trees, clocks, windows, drainpipes, even as weather vanes, all in an effort to meet the demands of planning departments.

The Government has commissioned the University of Reading and Arup to undertake an independent study to assess the impact the Best-Practice Code on Mobile Phone Network has had since its introduction last September.

This is part of a review of all planning arrangements on masts.

Third-generation mobile-phone masts have smaller cells, and so need to be sited closer to their customers - often within housing, industrial and retail estates. Within five years, there will be about 60,000 sites for these masts.

Operators run the risk of having their licences removed if they do not have substantial coverage (80%) by then.

Landowners and landlords may find themselves with a mast on their land that, once in place, proves tricky to shift.

Telecoms operators require a wayleave to place equipment on land. However, the wayleave can be granted by the occupiers and "owners of interests" in land, who include tenants, not just the landlord or freeholder.

An occupying tenant can therefore enter into a wayleave agreement with an operator that will bind the landlord. Obviously, landowners need to protect their property by ensuring the tenant's lease contains a provision requiring the landlord's consent before entering into such an agreement.

Section 96 of the Telecommunications Act 1984 provides that this consent must not be unreasonably withheld.

Hard to remove

However, even if the landlord finds himself with a fait accompli and asks for the apparatus to be removed, the operator has the right to apply for a court order to confirm its right to be there and to compensate the landlord with cash.

The court will favour the landlord only if it believes his position is harmed more than the public good is served. This has not yet happened. If you, the landlord, originally gave permission for a wayleave, but want to get rid of it at the end of the term, you might be in for an unpleasant surprise.

Once again, if the operator does not agree to leave, the landlord's only recourse for removal of the apparatus is to make a court application and explain why financial compensation is not adequate and why his interest as owner of the land overrides the stated policy interest of the public in having access to a telecommunication network.

Bear in mind that when granting a wayleave, they can stick for an indefinite period, like superglue, on your land.

Commercial value

As a landlord you should be aware of the value of your land to the mast operators. It is much harder for the operators to find urban sites and they are more than likely to pay premiums for them in the current climate.

Rent reviews should be index linked and be dependent on the type of equipment proposed.

An operator's ability to share its equipment with others will always be included in the terms it proposes to a landowner, but it is possible to include this as a factor when determining rent on review and to negotiate a share of income from those others.

You should also take care to limit liability for damage caused by operation of the equipment once in service. The physiological effects of microwave propagation on a wide scale create lurid headlines, but are still not fully understood and liability should be firmly placed where it belongs - with the operator.

Planning permission

Under planning regulations, operators are now required to consult widely on the possibility of using an existing mast or structure before seeking to put up a new mast.

Although the smaller masts - under 15 metres in height - don't generally require planning permission, the operator still has to submit an application for determination, which the local authority must deal with within 56 days.

If a decision is not made in 56 days, it is approved by default. The authority cannot reject such an application on principle, but only on details of siting and appearance. These details can include:

* The height of the site in relation to surrounding land;
* The existence of topographical features and natural vegetation;
* The effect on the skyline or horizon;
* The site when observed from any side;
* The site in relation to areas designated locally for their scenic or conservation value;
* The site in relation to other masts, structures or buildings, including buildings of a historical or traditional character;
* The site in relation to homes.

The third-generation mobile phone masts could mean that a landowner's property is continuously engaged for the foreseeable future, so take great care when contemplating a wayleave agreement.

Richard Freeman-Wallace is head of property at Watson Burton LLP.
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