Session 2019-20
Telecommunications Infrastructure (Leasehold Property) Bill
Written evidence submitted by Rosemary Herbert, Professional Support Lawyer, Howard Kennedy LLP (TIB06)
Telecommunications Infrastructure (Leasehold Property) Bill
Dear Committee Members,
I'm the professional support lawyer in the Real Estate department at Howard Kennedy LLP https://www.howardkennedy.com/en/contact-us . We are a department of over 100 lawyers and deal with a wide variety of property transactions. We encountered a problem a couple of years ago when the new Telecommunications Code had just come into force which highlighted the issues which this Bill is intended to remedy.
It involved a client which is a tenant of a unit on an industrial estate. The client wanted to revamp their telephone system and this involved a telecommunications operator putting in a new pole on the estate and connecting wires from it to the unit. The landlord issued a licence for alterations which also purported to be an agreement for an operator to have rights under the new Code. This provided, among other things, that the client was required to indemnify the landlord in respect of the works being done by the operator outside their unit. This seemed unreasonable given that the operator was giving the landlord a substantial indemnity and the works concerned mainly involved land outside the client's control. The whole thing was held up for several months as the landlord refused to concede the point. In addition the operator refused to use their statutory powers to carry out the works. The new bill is intended to prevent landlords holding up tenants making connections to the telecoms network. From the brief description of the Bill provided I'm not sure it would achieve that aim, having seen how this situation can arise.
1. The legislation should not just apply to buildings but estates or centres or business parks where tenants are dependent on services running over an area controlled by the landlord.
2. It contemplates a lack of response from the landlord to a request for access to the landlord's property . It does not deal with where the landlord unreasonably refuses consent to this or imposes unreasonable conditions .
3. The Bill enables the operator to obtain a court order of some sort. There does not seem to be an obligation on the operator to do so which means that, as in our situation, nothing may happen. The tenant should have the right to obtain a court order requiring the operator to carry out and the landlord to consent to the works. The landlord should be able to present objections on specified grounds but these should be limited.
4. The committee should be aware that recently tenants' lawyers have been inserting provisions in leases requiring the landlord to consent to the installation of telecommunications equipment and grant of the relevant rights to the operator. May be this could be implied (perhaps for works of a more minor nature) as an alternative or in addition to rights for the tenant to obtain an order of the court? Although most leases give tenants the right to run services over the landlord's adjoining property, case law has decided that this does not oblige the landlord to enter into the necessary wayleave or easement with the utility provider.
Yours sincerely,
Rosemary Herbert
February 2020