Business Clinic: Must I give mobile operator survey access?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help. Here, Paul Williams of Carter Jonas advises on how to handle an access approach from a mobile phone operator.

Q. I have been approached by an agent for a mobile telecoms operator wanting to access my land for a survey.

I do not have a telecoms mast currently, but they say that they have “code rights” to access my land. What does this mean and, if so, is there anything I need to be aware of?

A. It sounds as if this request relates to investigations for a new site requirement in the area.

This is increasingly common as mobile operators look to roll out sites as part of the Shared Rural Network; a 50:50 publicly subsidised commitment of non-profitable geographic coverage for lucrative 5G spectrum licences.

An operator is likely to carry out several activities as part of their investigations, ranging from a simple visual inspection to photos taken with a cherry picker or drone, through to a geotechnical or “borehole” survey which is more intrusive.

Under the previous Electronic Communications Code, many rural landowners will have been tempted to host a telecoms site on their land, in return for annual rents of £5,000-£6,000.

However, armed with new code legislation, operators now offer a fraction of these sums – in some cases as low as tens of pounds a year.

Understandably, this, and regular intrusive access, has resulted in landowners treating approaches for new sites with caution.

See also: Business Clinic – can I develop on the edge of a village?

Once an operator has rights over land it is very difficult (not to mention costly) to remove them, so it is important that any initial approach – even for a seemingly benign “visual survey” – is considered carefully.

The agent’s assertion that their operator client has “code rights” is misleading, but not uncommon.

No grant of access obligation

You are under no obligation to grant access. An operator can only be granted (or conferred) rights under the code by written consensual agreement between the parties, or by an operator obtaining a court order.

Operators (whether mobile or fibre) have no automatic rights under the code.

The first thing to be aware of is that granting access to land without proper documentation covering such items as damage, reinstatement, liability or scope can leave landowners potentially exposed to unrecoverable costs or even third-party claims from occupiers, neighbours and the public.

Where access is required to (or over) land which is tenanted, in environmental stewardship, contains livestock or has public rights of way, the situation is more complex.

Protect interim rights

Having a clear document setting out what “interim rights” are granted to an operator is a double-edged sword.

A written document agreed between the parties will always attract statutory protection under the code and, as such, can only be terminated on specific grounds, irrespective of the likely short-term requirement.

While this might be less of an issue if any proposal progresses to a full installation, should an operator not proceed, their rights under that agreement continue to burden the land and bind all future owners and occupiers.

The only way for a landowner to have the protection of a written agreement dealing with interim rights, but not the burden of statutory continuation, is for such agreements to be drafted and presented to the court for execution.

While this is more time-consuming and costly for the operator, it does provide landowners with comfort that an operator’s rights end absolutely on an agreed date or event.

Most operators are quick to litigate for permanent rights once they have a confirmed design on site, putting landowners under costs pressure, and in some cases even submit planning without the landowner’s knowledge.

A carefully considered interim rights agreement at the outset, along with clear communications and engagement, will be key to a successful outcome.

Seeking specialist advice on your specific situation, as well as expert representation from the outset, will pay dividends in the future.

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