Judgment Day in the Telecoms World
The long awaited tribunal judgment is finally here and it means success for telecoms operators seeking to impose a New Code agreement on a landowner. However, the outlook is not entirely bleak for landowners as the tribunal made some favourable clarifications which landowners will be able to take advantage of going forward.
This is also the first tribunal decision determining rents under new Telecoms Code and the level of compensation to be payable to a landowner. We have set out below the main highlights of the judgment:
The tribunal awarded consideration (i.e. rent) in the agreement to be £2,551.77 per annum and this not only included a sum for “rent” (which was determined to be £1,000) but also included a sum for estate management liabilities such as maintenance, the provision of access and insurance.
It is clear that each case will turn on its own facts when considering the level of consideration, but some noteworthy points made by the tribunal include:
• Old Code “rent” comparables are not relevant as the valuation assumptions for such rents are wholly different – valuations are therefore unlikely to be affected by past transactions under the Old Code;
• No increased level of consideration to reflect rights to install additional dishes in the future – landowners will therefore not be able to demand an increased sum for rent if such a right is included in a Code agreement;
• There is no demand for rooftop space for any commercial purpose unconnected to telecommunications, but this does not mean that a nominal consideration follows as a result of the “no scheme” valuation in the New Code.
Whilst no additional compensation was awarded to a landowner in this decision, the tribunal noted that a landowner could make an application at a later date to claim losses if they arose.
This is good news for landowners and it means that even if they can’t evidence losses at the hearing, they will have an opportunity to issue a claim at a later date. The tribunal in this case noted that the following losses could be sought, where landowners can evidence the same:
• Diminution in value in the property if the landowner is prevented from realising its true value to a greater extent than envisaged by the consideration awarded;
• Aesthetic detriment if the capital value of the land is diminished due to the presence of apparatus;
• Delayed repossession if there is delay to a project to construct on the roof; and
• Lift and shift delay to roof repairs as a result of the presence of apparatus.
Imposed Agreements Take effect Immediately
The tribunal held that once the Order is made for a Code agreement to be imposed on a landowner, it binds the parties without the need for any further documentation to be executed by them.
An operator can therefore immediately gain access to land, and the landowner has not further mechanisms to delay possession.