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28/08/2008 15:42:24
Warning to landowners on mobile phone masts
Landowners tempted to enjoy a windfall from allowing mobile phone masts be be erected on their property have been warned that the long-term disadvantages may outweigh any short-term gain.
Mike Noble, conveyancing property partner for Midland law firm MFG Solicitors and head of the firm's Telecoms Unit, says landowners may find the benefits of rent are outweighed by subsequent curbs on the scope for long-term development of land around the mast.
He said: "Once the operator is on the site it becomes difficult to get rid of him even if the agreement has expired.
"The 2003 Communications Code allows operators to acquire and retain sites subject to the county court's confirmation but the court has a restricted decision in the matter.
"The reality is that on termination of such agreements, operators will usually have little compunction about using their Communication Code powers to remain in occupation.
"The Code does allow a court to order alteration of equipment but it is doubtful whether this would extend to outright removal.
"The operator only has to satisfy the court that any prejudice caused can be compensated for by money, or is outweighed by the benefits to be enjoyed by potential phone users.
"Even though the operator can be required to remove apparatus when a site agreement is terminated, the reality is that no order will be made – provided the operator serves a counter-notice specifying his intention to keep or reinstall the equipment.
"The operator's counter-notice trumps the landowner's right to require removal of the mast.
Mr Noble said many experts believed the Code needed urgent revision. One possible remedy lay in the Human Rights Act 1998.
An action could be brought on the basis that there had been a breach of Article 1 – the right not to be deprived of one's possessions except in the public interest.
"There have been surprisingly few reported cases on phone masts, and it is an area of law that is little understood.
"Landowners should therefore take advice from specialist lawyers before signing. Once the phone mast is erected, it may be very difficult for them to get it removed."
Mike Noble, conveyancing property partner for Midland law firm MFG Solicitors and head of the firm's Telecoms Unit, says landowners may find the benefits of rent are outweighed by subsequent curbs on the scope for long-term development of land around the mast.
He said: "Once the operator is on the site it becomes difficult to get rid of him even if the agreement has expired.
"The 2003 Communications Code allows operators to acquire and retain sites subject to the county court's confirmation but the court has a restricted decision in the matter.
"The reality is that on termination of such agreements, operators will usually have little compunction about using their Communication Code powers to remain in occupation.
"The Code does allow a court to order alteration of equipment but it is doubtful whether this would extend to outright removal.
"The operator only has to satisfy the court that any prejudice caused can be compensated for by money, or is outweighed by the benefits to be enjoyed by potential phone users.
"Even though the operator can be required to remove apparatus when a site agreement is terminated, the reality is that no order will be made – provided the operator serves a counter-notice specifying his intention to keep or reinstall the equipment.
"The operator's counter-notice trumps the landowner's right to require removal of the mast.
Mr Noble said many experts believed the Code needed urgent revision. One possible remedy lay in the Human Rights Act 1998.
An action could be brought on the basis that there had been a breach of Article 1 – the right not to be deprived of one's possessions except in the public interest.
"There have been surprisingly few reported cases on phone masts, and it is an area of law that is little understood.
"Landowners should therefore take advice from specialist lawyers before signing. Once the phone mast is erected, it may be very difficult for them to get it removed."
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