In the United Kingdom, many landlords find that telecom operators have approached them asking for permission to build, upgrade, and/or repair telecom networks on their land. Wayleave agreements are becoming increasingly common because of the fast pace at which full fibre and 5G broadband technology is developing. But it can be confusing for landlords if they do not know whether they are under an obligation to cooperate and whether they can refuse a telecom wayleave request.
The purpose of this article is to determine the definition of a wayleave agreement, the legal status of a telecom wayleave request in England and Wales, if a landlord can legally refuse such a request, and what will happen if they do.
What Is a Telecom Wayleave?
Wayleave refers to a contract where a telecommunication firm obtains a right from the owner of the private property or the building to erect their equipment in exchange for access and, most often than not, financial considerations from the telecommunication firm to the property owner. This legal right is non-easement, which implies that it could be personal and revocable. The confusion arising between easement and wayleaves becomes evident due to recent reforms in the Electronic Communications Code (the Code) introduced in 2017.
Wayleave is typically required when there is need to erect fibre optic cables within the residential building, commercial building, retail park, and lands next to roads or footpath for expansion of the network coverage. Wayleave may arise as a result of demand by the tenants of the firm for the new internet service provider or the telecommunication firm itself to ensure future proofing in the area.
Can a Landlord Say No?
Yes, in theory – there is nothing that compels a landlord to give the wayleave in the absence of an obligation imposed on them by the operator. In England and Wales, private property rights belong to the owner of the land and nobody has a right to enter into a private property and install their equipment without the permission of the owner of the land or any judicial order.
The reality is slightly different, though. Operators have statutory rights, which go way beyond normal business practices. If a landlord fails to respond to the operator’s request or reject it, the operator may resort to statutory rights and enter the land despite the objection.
Reasons Landlords Might Want to Refuse
The list of reasons below is a non-exhaustive one:
- Fears concerning structural damage to the building or attic
- Disturbance of the occupants while conducting the installation process
- Fears related to the maintenance of access path in the future
- Uncertainty of payment terms or compensation
- Some plans for land development in the near future
- Interest in negotiation on better terms rather than accepting the initial offer from the installer
All these reasons are valid from the business point of view, but it doesn’t mean that they could stop the installation process forever in front of the Tribunal.
The Electronic Communications Code and Part 4A Orders
Since its implementation in December 2017, the Electronic Communications Code significantly improved the powers of operators to gain access to the land for the installation and maintenance of electronic communication equipment. If the landlord disagrees with giving the wayleave voluntarily, the operator is allowed to seek an order from the Upper Tribunal (Lands Chamber) that will make the agreement binding upon the landowner.
Besides the principal wayleave agreement procedure after 2022, there is another faster procedure provided by Part 4A of the Code that is to be used when the operator wishes to use land to deliver services to a single tenant that has applied for such services and the landlord is unresponsive or refuses to do it. The principle behind the Part 4A order procedure was to speed up the whole process much more than Code agreement because of the intention of Parliament to solve any problem concerning the rollout of broadband.
According to Part 4A order, if the conditions specified in the notice requirements have been met and the landlord has failed to respond in the statutory time frame, the Tribunal can make an order permitting the operator to install the apparatus on the premises.
Grounds on Which the Tribunal May Refuse an Operator’s Application
Nonetheless, refusal alone does not automatically doom the landlord’s claim, although for the landlord to succeed in the Tribunal, he may still need to do more than simply convince the Tribunal of his unwillingness. For instance, the Tribunal may also want to take into account how the landlord intends to use his property, his re-development plans, difficulties of mast installation, as well as fairness of the offer presented by the operator. A landlord who is able to show that there is a valid reason, like the fact that his property is about to be re-developed with approval from the local authority, is in a better position than a landlord who refuses simply because he refuses.
What Landlords Should Do When a Wayleave Request Arrives?
- Respond promptly – failure to do so could expedite the operator’s rights under Part 4A
- Inspect the terms of the wayleave carefully – especially where there is mention of access rights, payment, insurance, and restoration
- Seek expert advice before making a decision – the wayleave terms might affect future development or sale of the property
- Bargain rather than reject outright – most operators would accommodate you in regard to access hours, route, or payment
- Clearly record all correspondence in case of referral to the Tribunal
Conclusion
The landlord has every right to raise objections to, negotiate on, and even refuse a wayleave application from a telecommunication operator. However, all property rights still reside with the owners, and the operators cannot install any equipment without their approval or a tribunal order. Nonetheless, the Electronic Communications Code, and more specifically the part 4A process, offer a highly effective and increasingly rapid method of obtaining approval for access rights regardless of any objections raised by the landlord.
In fact, any objections serve to extend the period during which the installation of the equipment will take place but cannot stop it, since it merely means that the opportunity of negotiating the conditions with the landlord will be lost in favor of the tribunal. The best thing for the landlord would be to take into consideration the application, analyze and negotiate the fair conditions. Since the matter is rather complicated from a legal standpoint, the landlords who face such an application need professional legal consultation.
FAQs
Can a landlord ignore a telecoms wayleave request?
No, because the result of ignoring such a request could be counterproductive, particularly within Part 4A of the Code, where the absence of response from the landlord would enable the operator to gain access quicker than they would if they had responded.
Is there any payment involved in granting a wayleave?
Yes, but the amount differs depending on the specific situation. Currently, with the new arrangements for compensations within Code Agreements, payment is based on no-network and is thus smaller than in traditional, pre-2017 wayleaves.
What is a Part 4A order?
It is a swift procedure used by operators to install equipment in order to supply requested tenants in the case when the landlord ignores or rejects the request, without having to have the hearing regarding Code Agreement.
Is there an example when the landlord could permanently prohibit the operator from doing its activity?
No, because landlords need reasonable grounds, supported by evidence, for example, re-development, which allows them to convince the Tribunal not to grant the operator’s application.
Will the denial of the wayleave affect the tenants?
Yes, since tenants will not be able to use their chosen broadband service due to the denial of the wayleave.
Is it necessary for the landlords to seek legal help concerning this question?
Yes, it is since they need to defend their interests and not be forced to accept unfavorable conditions set by the Tribunal.