Digital infrastructure agreements – getting the balance right
The recent consultation on changes to the Electronic Communications Code made two things clear: the roll out of 5G will continue apace and the hands of the operators will be strengthened in order to facilitate this.
Digital connectivity is a critical part of modern life and so how do landowners ensure that their interests are protected while allowing the digital infrastructure of the UK to grow and improve?
Operators typically wish to use their own form of agreements, in relation to rooftop and greenfield mast sites and also in relation to the installation of small cell technology on items of street furniture, so as to have uniformity of approach across their infrastructure.
However these agreements naturally tend to favour the operator and do not cover all of the issues that, say, a local authority, as landowner of a tenanted building, or a school playing field or the owner of street lighting will need to consider.
The buildings which are sought by operators for roof top leases are typically high rise, and so many are residential or mixed blocks in urban areas. Landlords of such blocks may be private sector, local authority or housing association, but all will need to have due regard to the obligations they have to their residential tenants, in particular regarding fire safety (especially if structural works that may impact fire compartmentation are contemplated), safeguarding issues relating to who has access to the building and practical management matters that can cause difficulties for residents, such as operators taking out use of the main lifts or car parking areas while works are ongoing.
In relation to greenfield leases, sites in agricultural or other open areas do not give rise to too many issues, but school playing fields can also be earmarked by operators, which provides a raft of challenges for the relevant school and/or local authority.
It is for this reason that we suggested to local authority clients recently that they use a landlord generated form of agreement when approached by leading telecoms operators. One site involved the roof of a residential building in the heart of Westminster and the other the corner of a school playing field in Kent that is also used by the local cricket club.
The benefit to the landowner of this approach is that the leases we prepared were more balanced documents, which contained appropriate protections to deal with some of the matters noted above. They also set out in more detail: what further costs the landowner could recover during the term of the lease, notwithstanding the statutory provisions for future compensation and noting that the time and costs of tenant consultation can be a key element of keeping other relevant stakeholders on board when major works are proposed; agreed positions on lift and shift for rooftop scenarios which can be tailored to reflect the age and condition of the roof fabric (thus factoring in the risk of landlord maintenance works necessitating a temporary or permanent relocation); and a more nuanced position than catered for in the Code in relation to the process for upgrades to the equipment and further works of alteration.
In relation to applications by operators to install small cell technology on street lighting and other items of street furniture, there is also merit in a local authority in its capacity as owner of the relevant assets using its own form of framework agreement. Such framework agreements cover matters such as:
- the way in which to identify relevant individual items of street furniture and what is meant by that term;
- the matters an authority will take into account in the event of multiple operators requesting access to the same asset to ensure an open and transparent process to protect against challenges;
- what information authorities require from each operator regarding their equipment;
- shut down and lift and shift provisions;
- compensation and fees.
There is also a benefit to operators accepting landowner produced agreements however. Organisations such as local authorities are likely to have multiple mast sites that may be of interest to several different operators, therefore having a balanced template form of agreement that is internally approved and can be rolled out across the whole of an organisation's housing stock and other assets means individual sites can be deployed much more quickly. We have proof of concept that the main operators will accept landowner generated leases prepared by us for roof top and greenfield sites respectively. Negotiations in relation to leases of subsequent sites can then be confined to minor site specific and valuation related issues.
We are also helping local authorities ensure that their framework agreements for small cell technology on items of street furniture are fit for purpose to enable the roll out of small cell equipment at speed and at scale over a large number of assets in the most cost efficient manner.
Use of a landowner produced agreement is ultimately cost effective for both parties, as it speeds up the process, fosters greater trust and collaboration between landowner and operator and so also achieves the desired common goal; improved connectivity for the relevant area.
If you would like to know more and if you think we could help you with requests relating to your roof top and green field sites or street furniture, we would be happy to let you know more.