Trenches Law News • October 24th, 2019
An interesting article in The Evening Standard recently pointed to some worrying statistics regarding thousands of London residents’ inability to access ultrafast broadband.
The piece caught Trenches’ attention because difficulties surrounding complex wayleave agreements were cited as the heart of the problem. It was reported that Openreach had been unable to gain consent to enter 848 high-rise buildings in the city – a figure which represented 9,941 residential or business premises.
As lawyers in the telecoms sector, we know first-hand how difficult wayleave matters can be. But we can also vouch for the fact that it is possible to enter into proactive, successful dialogue with landowners and landlords, to negotiate those all-important right-of-way permissions that enable network expansions.
The multi-layered nature of the wayleave process means that many network operators’ internal support staff will soon reach a ‘dead end’ if relying solely on the send of one or two chasing letters. A dedicated team is usually required to liaise with all freeholders, so that personalised letters, calls and – if necessary – visits can be carried out. Often, if the landowner better understands what is involved and whether there is any right to compensation, rights to enter can soon be obtained.
This may sound like a time-intensive process but if managed by people who speak the lingo and understand this environment, it can actually unfold in an efficient manner.
It is important to also remember that operators have the ability to leverage their Code Powers, if necessary, to accelerate the negotiation and conclusion of the relevant wayleave. Initiated by a wayleave specialist, this is done after attempts to correspond with the freeholder have either been met with no response, there has been a refusal to grant a wayleave, or this will only be done with unreasonable terms in place. An operator can serve a statutory notice – pursuant to the Electronic Communications Code (Code), under the Communications Act 2003 – on the freeholder. The number of operators using the court to exercise Code Powers is likely to increase given the government’s latest proposed changes to the Code – simplifying and speeding up the process and drastically reducing the associated costs. A degree of confidence, creativity and experience does help when it comes to this stage of the process, but for people who work in this world on a daily basis, this exploration of different angles is the norm.
Commenting on the Evening Standard article, Trenches’ founder Sharon McDermott said: “Larger organisations don’t always have the agility to navigate the ever-varying nature of wayleave agreements. Negotiations differ from one landowner to the next, but because internal colleagues are often tasked with following a set process, there isn’t the autonomy to make decisions on their feet. If a stall or objection is encountered, the network expansion can soon grind to a halt as a result.
“Knowledge of the telecoms landscape, an appetite for taking calculated risks, and proven experience of helping to connect as many properties as possible, first time round, all contribute to successful wayleave executions. Some freeholders are often keen to cooperate, when they realise the value that full fibre will add to their premises.
“In short, it is possible to navigate this complex procedure – it’s just about knowing what to expect and how to adapt.”