Download PDF - Strutt & Parker

New Roll OutWith Ofcom statistics already showing increases in the number of base stations across the UK, there isanecdotal evidence that significant numbers of additional sites will be required. Undoubtedly, many newinstallations will share existing towers, roof-top sites and even antennas, but inevitably the need to reduce thesize of cells to deal with capacity will require new infill sites. This will present opportunities for landlords ofexisting sites who will need to be wary of loosely worded site sharing, subletting and group companyassignment clauses if they are to make the most of such opportunities.The advancement of 4G (using Long Term Evolution technology) is highly likely to depend on an increasednumber of sites and this appeared to be the findings of Telefonica O2 in their recent 4G trial in London.Fibre OpticsWith the demand for greater access to data and for improved communication links between mobile phonemasts, there has been greater activity in relation to fibre optic links. Not all telecommunications leases allowfor fibre optic links to the site and lease wordings need to be considered very carefully as negotiations canyield profitable results for landlords.Whilst new links have featured significantly in the last 2 years, including international links to Ireland and theContinent, lease renewals have become the main area of activity in the fibre optic market. One operator,Energis, rolled out a network along the top of electricity pylons and many of these leases were for fixed termswhich have now expired. It is worth noting that, whilst nationally agreed frameworks may assist landowners,they are not binding and negotiations based on actual market evidence invariably produce a better result.Rents and capital payments can vary depending on the number of fibres and the availability of alternativeroutes. Average capital payments for 15 year fixed terms are at approximately £10 per metre run or £2,000per tower.Virgin Media has already connected cables with the capacity of 100Mbits per second to 4 million homesand BT plan to connect 10 million homes to their 80-100Mbits per second system by 2013, extending this tocover 66% of homes in 2015. This level of activity is bound to have repercussions for the property relatedaspect of the industry.The CourtsSince our last Survey, there have been a number of interesting developments before the Courts.The main legislative framework for telecommunications, The Electronic Communications Code, came in for agreat deal of criticism from Lord Levison in Bridgewater Canal Company –v- Geo Networks [2010] EWHC548 (Ch) who described it as “…possibly one of the worst pieces of legislation on the Statute Book”. Thiscomment went unremarked in the subsequent appeal and, partly as a consequence of these comments, theLaw Commission is to conduct a review of the Code.Network consolidation itself came under scrutiny before the Technology Court in Arqiva –v- EverythingEverywhere Ltd [2011] EWHC 1411 (TCC), where it emerged that Orange no longer has an electroniccommunications licence, it having been transferred to the separate legal entity of Everything EverywhereLimited with effect from 2nd March 2011. The validity of this transfer was queried by the judge but has notbeen fully scrutinised in that the case settled before a second hearing to determine the validity of Ofcom’sactions. This transfer may give rise to issues under the business occupancy provisions at lease renewal underthe Landlord & Tenant Legislation and in the exercise of Code Powers. It would appear doubtful that Orangewill be entitled to serve a counter notice under paragraph 21 of the Code to any notice to quit.7STRUTT & PARKERTELECOMMUNICATIONS SURVEY 2012