Phone masts face new restrictions

Jul 5 2006

By Richard Freeman-Wallace, The Journal

The Telecommunications Masts (Planning Control) Bill had its second reading in March this year, and has since been adjourned until October.

Phone masts, in the same way as other buildings and developments, are subject to planning controls. It is a controversial area and many applications face objections, the numbers of which rise significantly if it is planned to locate them in or near a residential area, school or hospital.

Health and safety concerns come to the fore if a mast is likely to be near a home or community services.

Legislation going through Parliament proposes changes to address health and safety issues.

It introduces the concept of a "precautionary principle statement", which means every application must contain a statement on the possible effects on health and the environment of installing the equipment.

In the same way, each application would need to be accompanied by a "Beam of Greatest Intensity Certificate", providing information about exposure to radio frequency radiation. The legislation would amend the Electronic Communications Code so operators would not be able to obtain a court order to use land to install equipment if that land was used for educational or medical facilities.

Operators require a "wayleave" to place equipment on land. However, this can be granted by the occupiers and owners of interests in land, which include tenants.

An occupying tenant can therefore enter into a wayleave agreement with an operator that will bind the landlord. Landowners need to ensure a tenant's lease contains a provision requiring the landlord's consent before entering into such an agreement.

If you, the landlord, originally gave permission for a wayleave, but want to get rid of it at the end of the term of the lease, you might be in for an unpleasant surprise.

Once again, if the operator does not agree to leave, the landlord's only recourse for removal of the apparatus is to make a court application and explain why monetary compensation is not adequate.

Bear in mind that when granting a wayleave, they can stick for an indefinite period on your land. The new legislation's inclusion of easier removal of masts from schools, hospitals and related services is the first sign of a softening in this area.

As a landlord you should be aware of the value of your land to the mobile phone mast operators. It is much harder for operators to find urban sites, and they are more than likely to pay premiums for them.

You should also take care to limit liability for damage caused by operation of the equipment.

We wait to see what the potential impact of the new legislation will be when it is heard again this autumn.

Richard Freeman-Wallace is head of property at law firm Watson Burton in Newcastle.

© owned by or licensed to Trinity Mirror Plc 2006

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