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