• The UK Government has proposed new planning laws in England to help mobile operators extend and enhance mobile coverage
• The new rules will enable operators to connect countryside to 4G quicker and accelerate 5G roll out
• The new laws will make the sharing of infrastructure between operators easier
• Law changes will reduce need for new phone masts and boost signal on roads
• Protection built into changes to preserve rural scenery

The industry has welcomed the Government’s proposed changes to planning laws which will further assist the rollout of the Shared Rural Network, which will limit partial not-spots and extend rural coverage, and further enhance the operators’ ability to extend 4G coverage and deploy next-generation 5G networks.

The reforms promote the sharing of infrastructure by multiple operators by taking into account changes in mobile technologies and the passive infrastructure that host mobile equipment.   The new planning laws will mean fewer phone masts will be needed overall to level up the country with improved 4G and 5G mobile coverage as telecoms firms will be able to upgrade existing infrastructure over building new masts.  In doing so, mobile operators will be able to extend mobile coverage and capacity further and faster across the whole of the UK, which will also benefit the Government’s Levelling Up agenda and attempts to reduce digital exclusion.

Digital Infrastructure Minister Julia Lopez said:

“We’ve all felt the no bar blues when struggling to get a phone signal, so we’re changing the law to help network companies wipe out mobile ‘not spots’ and dial up the roll out of next-generation 5G.  Phone users across the country will benefit from this – whether in a city, village or travelling along our roads – and tighter rules on the visual impact of new infrastructure will ensure our cherished countryside is protected.”

Hamish MacLeod, Chief Executive of Mobile UK, said:

“Building the mobile networks that provide the connectivity on which we all rely is both complex and challenging. The industry welcomes the reforms to planning regulations proposed by the Government. They will enable operators to deploy mobile networks more efficiently to meet ambitious targets for rural and urban coverage, including next-generation 5G.”

Further readings:

mobileuk.org/news/industry-welcomes-new-planning-laws-proposed-to-assist-4g-and-5g-rollout

gov.uk/government/news/new-laws-to-end-mobile-coverage-no-bar-blues

by Will Osborne, Town and Country Planning Manager, and Samantha Gray, Community Relations Manager

In the UK, National Planning Regulation is a devolved function, which means that England, Scotland, Wales and Northern Ireland all have different legislations and differing local authorities for managing their planning matters. Mobile infrastructure installations are located far and wide across the country – in the centre of towns or cities, in conservation areas, on listed buildings and in designated areas such as national parks. A single installation at any given location provides coverage to a wider area and benefits the entire surrounding community. Regardless of the location, appropriate planning consent has to be obtained from the relevant planning authority before the installation progresses.
At MBNL, our in-house Planning Team provide guidance and advice to both our internal teams and our external partners on all planning matters including site identification and design, planning applications and industry consultations. The Planning Team also undertake engagement with various key stakeholders involved in the planning process, such as Government, Local Authorities, elected representatives, local communities, and the media.

When a new site is proposed, MBNL’s appointed agent follows MBNL’s guidance and processes to start engagement with the planning authority and to prepare the necessary applications. The level of consultation varies depending upon the location. As an example, sensitive locations such as conservation areas, listed buildings and national parks require a more thorough engagement plan and include multiple stakeholders.

The UK’s Mobile Network Operators (MNOs) have access to certain Permitted Development Rights (PDRs) set out in legislation for each of the devolved nations.  PDRs involve minor forms of development and the process is usually through a simple notification to the planning authority.  In many cases PDRs allow the MNOs to install equipment without the need for a formal application.

At MBNL, we adopt an open and transparent  approach to our planning applications and follow closely the principles of Ofcom’s Electronic Communications Code – Code of Practice in all communications when our applications are being considered.  We take pride in our engagement activities where our team often go the extra mile to ensure our site providers and other key stakeholders are informed and heard throughout the process, and any concerns from the general public are addressed.

MBNL are committed to continuing to work closely with central government, the devolved authorities and our site provider community to deliver world-class mobile connectivity infrastructure to benefit the whole country.

Our Planning Team are on hand to answer any questions or concerns you may have and can be reached at community.relations@mbnl.co.uk

by John Watkins, Senior Security Operations Manager

At MBNL, we appreciate that site access and site security are of foremost importance to our site provider community; and our Operational Security Team have been working tirelessly to raise our standards and performance in this key area over the last couple of years.  MBNL’s Senior Security Operations Manager John Watkins shares how the team have been working to deliver on that mission.

The Operational Security Team work closely with many other teams within MBNL, such as the Health and Safety Team, to make our sites safer and more secure.  The improvement journey is very rewarding, as our efforts help to secure the sites, protect the assets, provide our site providers the assurances they need, and most importantly deliver a resilient network to provide vital mobile connectivity to EE and Three’s customers across the UK.

As part of this journey, at the end of 2020 we introduced the MBNL MyLocken system.  MBNL MyLocken utilises mechatronic locks to provide rigorous site access management, allowing us to record and monitor real-time activity as engineers and contractors attend sites.  One year on, we are confident site activities are being securely logged across the MBNL estate; from engineers visits to maintain the network equipment, through to activities required to upgrade the equipment, enabling MBNL to provide EE and Three with best-in-class mobile connectivity round the clock to serve their customers.  The continued rollout of the MyLocken locks also gives us important data on some significant areas relating to site visits such as visit pattern and trend, and contractor behaviour, which will provide us with useful insight for improving both our ways of working and the experience of our site providers.

Another milestone achievement of our journey is the establishment of the MBNL Physical Security Operations Centre (PSOC) in January.  The PSOC keeps an eagle eye on the MBNL estate via both the MyLocken system and also CCTV systems and has been very effective in helping to prevent attacks and incidents on our CCTV-monitored sites.  We have been extending the deployment of CCTV systems across our estate to better monitor and secure vulnerable sites against theft, vandalism, and unauthorised activity, supplemented with the use of asset marking solutions such as SmartWater Spray.  Our ability to install CCTV is only possible due to the continued support of our site providers in approving installation on their sites.  The support we have received so far is really encouraging and greatly appreciated.

As we progress into 2022, we will continue to install more MyLocken locks and CCTV systems where necessary to ensure the continued improvement of site access and security to safeguard and benefit all involved in our sites – whether site providers or our operatives.

At MBNL, we care a lot about the environment and always attempt to do whatever we can to minimise any impact arising from our operations. We are committed to shouldering our social responsibility as a corporate citizen whilst fulfilling our mission of bringing better connectivity to every part of the country. Richard Stevens, MBNL’s Structural Remediation Manager, shares his experience of an interesting project in which he came up with an innovative idea for putting our disused phone masts to good use for the benefits of the wider public in a very sustainable way.

“During my 25 years in the mobile telecoms industry, I have managed many projects and programmes of varying scales and challenges. I have built sites on mountains and in valleys, towns and swamps. Recently I have had the pleasure of leading a project tasked with replacing all of the wooden mobile phone masts in MBNL’s network across the UK. The project involved erecting new replacement towers to replace the wooden masts as part of the ongoing management and modernisation of our network infrastructure. The replacement tower in all cases was a like for like tower of the same height and girth, matched in colour to the original but made of steel. We were careful in the choice of replacement as it needed not only to look the same, do the same work and provide a longer life but also to blend into the environment the same way the wooden ones did. The other requirement was to ensure it was easily installed so as to avoid having a major construction site and causing disturbances to the local community. Many of the wooden masts were in very remote rural areas posing huge challenges for us to access and physically swap out the mast. We discovered some innovative forms of installing these masts – from a machine called a Marooka, basically a tank with a lifting arm on it, to a cherry picker that has legs and can walk. We used specialist vehicles to reduce the damage to any surfaces we crossed in order to minimise the impact on the local environment.

The national swap out was a great success. Now we were faced with one final question – what to do with the old masts? Instead of having them cut up and disposed of, I wanted to put these majestic wooden poles to a better use. After making some enquiries, the answer presented itself in the form of the Derbyshire Wildlife Trust (DWT) who were very keen to have the poles. The DWT intend to use these poles as bat roosts, osprey nesting platforms, for building “feely boxes” for school children visiting their centre, and other general construction uses. We have since donated many of the poles to the DWT and also have other similar non-profit organisations showing interest. I am thrilled with the outcome of this project not only because of the operational success but also the joy our disused assets are bringing to the wider public in a way that benefits the environment.”

In an exclusive article published by Estates Gazette (EG), MBNL’s legal team share their views on how two recent Code decisions, one in Scotland (EE Limited & Hutchison 3G UK Limited v Duncan) and another in England (EE Limited & Hutchison 3G UK Limited v Stephenson & AP Wireless II (UK) Limited), offer hope of a less litigious future for operators and site owners.

This article was first published by EG – @EGPropertyNews – on 16 August: https://www.egi.co.uk/legal/telecoms-code-the-beginning-of-the-end/. It is reproduced with their permission.

The beginning of the end?

Two Telecoms Code decisions, one in Scotland and another in England, offer hope of a less litigious future for operators and site owners, write Helen Dickie, Charlotte Wilson and Daniel Bain

“Next to a battle lost, the saddest thing is a battle won,” the Duke of Wellington is reported to have said, reflecting on his victory at Waterloo. Much the same can be said of lengthy and expensive litigation.

Since its introduction in December 2017, the Electronic Communications Code has undoubtedly been a battlefield, on which telecoms operators and site providers have fought over every inch of ground – the validity of notices; the existence (or not) of the right to the new agreements which the Code was enacted to provide; valuation; all other terms which those agreements should contain; and even the format of the draft lease to be exchanged during negotiations. It seems an entire ecosystem of professionals has been drawn into the conflict and joined one side or the other with agents, surveyors, solicitors and even barristers becoming known as “operator side” or “site provider side” in an adversarial landscape which is unheard of in other commercial property spheres.

In the years since its introduction, the abundance of litigation has highlighted some areas of the Code that could benefit from parliamentary clarification. The UK government launched a consultation on changes to the Code in January 2021, and responses closed in March. The industry has high hopes for this clarification, but the judiciary still has an essential role to play.

The legal position in England and Wales is currently somewhat in limbo, with both operators and site providers waiting for the decision of the Supreme Court in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] EWCA Civ 1755; [2019] PLSCS 201. There have, however, been two recent cases (applications under paragraph 33(5) of Part 5 of the Code, requesting termination of the subsisting agreement and grant of a new agreement) which have resulted in very clear and reasoned decisions in favour of operators and in support of government’s intentions for the Code.

The Scottish case

In Scottish law the principle of tacit relocation renders the vast majority of expired telecoms leases “subsisting agreements” for the purposes of the Code, and thus agreements to which paragraph 33(5) applies. EE Ltd & Hutchison 3G UK Ltd v Duncan [2021] CSIH 27 provides much-needed clarity that, on the majority of expired sites in Scotland, the operators will be entitled to new Code agreements.

At first instance, the Lands Tribunal for Scotland found that the requirement in paragraph 34(13)(a) of the Code to have regard to “the operator’s business and technical needs” set a “high bar” which the operators failed to reach. The tribunal refused the application, commenting that it did not specify any particular need for a new agreement, ie that there was a particular requirement on site which the existing arrangement did not provide or that there was something unduly onerous or restrictive in the existing agreement to justify its termination and replacement with a new agreement.

On appeal, however, the Inner House of the Court of Session (the Scottish appeal court) could not have been clearer in quashing the tribunal’s decision, stating: “We part company with the Tribunal in its assertion that the operators required to do more than point to the current arrangements as being out of step with the minimum rights available under the new code, for example in terms of assignation, upgrading, sharing and rent.”

Lord Malcom, delivering the decision of the Inner House, went to the crux of the matter in stating: “Parliament has identified certain minimum rights for operators, including sharing/upgrading abilities and reduced outlays resulting from valuation on a no scheme basis. The view was taken that these are required if network operators and infrastructure providers are to be in a position to deliver the modern low cost electronic communications system which Parliament wants and which business and the public at large expect.”

He considered that “absent some particular contra-indicator, it is not easy to see how or why a tribunal could reasonably prefer to prolong an old Code agreement rather than update it in accordance with the new Code rights”.

Further: “The tribunal’s analysis would severely curtail the legislative intention to create the opportunity to bring old agreements into line with new Code arrangements.”

The English case

EE Ltd and another v Stephenson and another [2021] UKUT 167 (LC); [2021] PLSCS 129, following the Duncan decision, was heard by Mr Justice Fancourt, president of the Upper Tribunal (Lands Chamber).

One of the preliminary issues that the UT was asked to consider was whether the claim for the termination and replacement of the subsisting agreement with a new agreement is bound to fail if operators do not aver a site-specific need for the termination and replacement of the subsisting agreement.

The UT agreed wholeheartedly with the decision in Duncan. It found that there is no requirement for operators to advance specific reasons for termination and grant of a new agreement. It stated that there is no reason why an operator cannot apply for a new agreement in the terms of its standard form Code agreement, and the respondent should raise any issue about the terms of the new agreement in its defence.

Where are we now?

The reasoning in these cases really goes to the heart of the issue: there has been a clear parliamentary intention enacted in the Code, namely to bring costs of telecoms sites to a reasonable level and thus enable operators to invest in infrastructure and technology to support the delivery of the government’s digital targets. Through their investment into extending rural connectivity under the Shared Rural Network, operators continue to show their commitment to extending coverage, in no small part to the changes to the Code, demonstrating it is fulfilling its purpose. If the Covid-19 pandemic has taught us anything, it is how crucial – how incontrovertibly vital – digital connectivity is in today’s world. Both decisions are extremely helpful in their clarity and simplicity.

At the time of writing, no application for permission to appeal against the Inner House’s decision in Duncan to the Supreme Court has been made, and such an application is not expected as the normal time limit for making it has expired. While in England the decision in Stephenson may still be subject to appeal, the clouds have well and truly cleared in Scotland.

These decisions can be expected to have a far-reaching impact on both the industry and landowner community. Will we see a move away from litigation and the time to usher in a new era in which both sides start negotiating constructively and working collaboratively to ensure the efficient transition to new Code agreements? Hopefully we will find out in the very near future.

Helen Dickie and Charlotte Wilson are both legal counsel at MBNL and Daniel Bain is a senior associate at Shepherd & Wedderburn

MBNL is delighted to be one of the 140 organisations to have received the Employer Recognition Scheme Gold Award for their outstanding support towards the Armed Forces community.  The awardees were announced by Defence Minister Leo Docherty on 16^th July.

Representing the highest badge of honour, Employer Recognition Scheme Gold Awards are awarded to those that employ and support those who serve, veterans and their families.

This year’s awardees bring the total number of Gold holders to 493.

Minister for Defence People and Veterans, Leo Docherty, said:

“I would like to thank all the organisations who have proven their support for the Defence community during such unprecedented and challenging times.

“The vast range of those recognised this year demonstrates how employing the Armed Forces community makes a truly positive and beneficial impact for all employers, regardless of size, sector or location.”

Gervase King, acting Managing Director at MBNL, said:

“We very much understand that the transition from being a member of the armed services into a civilian job and life can be hard for some. The life experiences gained in our military bring many transferrable skills. And it is why recruiting the best possible people has resulted in over 10% of MBNL colleagues being Veterans at MBNL.  I am a great supporter of the work that the Armed Forces resettlement teams do and MBNL plays a part in this by advertising all our vacancies through the CTP and FFJ websites.

Seeing MBNL proudly showing its commitment to the Armed Forces Covenant we hope reassures members of the serving, reservist, and cadet force adult volunteers that we are a great place to work.

That is why we supported so strongly that MBNL sign the Armed Force Covenant and its application first for a Bronze award in 2019, Silver award in 2020 and this application for a Gold award in 2021. These awards help MBNL give a clear message internally and externally that we are very positive about employing veterans, reservists, and cadet forces adult volunteers. It is why I have ensured MBNL policies have been further enhanced to support reservists and now extended to apply for any future cadet force adult volunteers.”

To win an award, organisations must provide 10 extra paid days leave for Reservists and have supportive HR policies in place for veterans, Reserves, and Cadet Force Adult Volunteers, as well as spouses and partners of those serving in the Armed Forces.

Organisations must also advocate the benefits of supporting those within the Armed Forces community by encouraging others to sign the Armed Forces Covenant and engage in the Employer Recognition Scheme.

Read press release by Ministry of Defence