Meeting mobile demand.
Is it a bird's nest? Is it a tree? No - it's a mobile phone mast cunningly disguised to blend in with the landscape.
Mobile phone masts are multiplying in number but shrinking in size. They are being disguised as chimneys, trees, clocks, windows, drainpipes, even as weather vanes, in an effort to meet the demands of planning departments.
Third generation masts have smaller cells, and need to be sited closer to their customers - often within housing, industrial and retail estates. Within the next five years there will be around 60,000 sites for these masts. Operators run the risk of having their licences removed if they do not have substantial coverage in place by then.
Landowners and landlords may find themselves with a mobile phone mast on their land that, once in place, proves particularly tricky to shift.
Telecom operators require a "wayleave" to place equipment on land. However, the "wayleave" can be granted by the occupiers and "owners of interests" in land, which include tenants, not just the landlord or freeholder.
A 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 that 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 financially.
The court will only favour the landlord if it believes his position is harmed more than the public good is served.This has not happened yet. If you, the landlord, originally consented to a wayleave, but want to get rid of it at the end of the term, you might have 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 the court application and explain why compensation in monetary terms is not adequate. Bear in mind that when granting a wayleave, they can stick for an indefinite period.
As a landlord you should be aware of the value of your land to the mobile phone 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. 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.
Under planning regulations, operators are required to consult widely on the possibility of using an existing mast or structure before seeking to put up any new mast. Although the smaller masts - those under 15m high - don't generally require planning permission, the operator still has to submit an application for determination, which the local authority must do within 56 days.
If a decision is not made in 56 days it is approved by default. The planning 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 existing masts, structures or buildings, including buildings of a historical or traditional character;
* the site in relation to residential properties.
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.
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|Publication:||The Journal (Newcastle, England)|
|Date:||Mar 10, 2004|
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