Way to go? Issues with telecoms wayleave agreements for property owners


The Evening Standard article of 27 September 2019 draws attention to fast broadband roll-out being held up by landlords not entering into wayleave agreements with telecoms providers.  Sometimes, there are issues with establishing the identity of the freeholders and how to make contact (especially if the freeholder is an overseas registered shell company).  Generally it seems that there are delays with securing landlord's consent even where landlords are identified and one resident describes its freeholder refusing to sign a wayleave agreement.

So what might be the reasons for a landowner's reticence to enter into a telecoms wayleave agreement?  

Wayleave agreements will in principle be agreements to which the Electronic Communications Code ("the Code") will apply.  The rights conferred by the Code are significant in terms of the property owner's land and include "a right to interfere with or obstruct access to or from the land" even if the electronic communications apparatus is not on, under or over the land. 

In the context of commercial lettings, the tenant may move out and terminate its supply agreement with a specific telecoms operator but the telecommunications apparatus remains.  

The landowner can only terminate the wayleave agreement for specific grounds under the Code such as an intention to redevelop and cannot use those grounds to terminate unless the wayleave agreement itself provides for its termination.  Wayleave agreements are usually standard documents presented by the telecoms operator and the landowner may not be given much time to negotiate its terms.  Even if the landowner can bring the wayleave agreement to an end, there are rather long notice periods required (18 months) and the telecoms operator can serve counter-notice objecting.  The Code then sets out a prescribed procedure for the removal of the apparatus.  If no agreement as to removal is reached, the landowner has to resort to the courts.

For a property owner, entry into a wayleave agreement involves limitations on its ownership but clearly businesses do need fast broadband and landlords do have to be prepared to accommodate this.  It would be best for parties to reach this understanding early on.  In fact, for tenants entering into a new lease, it is a good idea to try to include in the lease an obligation on the landlord to enter into a wayleave agreement if required by the tenant.

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Mr Figures said the managing agent of his building had approached the freeholder about access for Openreach but it had refused to sign a wayleave agreement. He added: “It’s incredibly frustrating, we’re just stuck in this legal limbo. The freeholder doesn’t have to pay anything, there is no liability, all they have to do is sign an agreement giving Openreach permission to lay cables.” Openreach boss Clive Selly said he wants a change in the law to give the company the same legal rights to enter as gas, electricity and water suppliers.
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