The rollout of digital infrastructure across Scotland has accelerated in recent years, driven by government initiatives and the growing demand for connectivity. For landowners, this often means being approached by telecoms operators seeking to install or upgrade equipment on private land. Understanding your rights and obligations under Scots law—particularly the Electronic Communications Code (the “Code”)—is essential to negotiating fair and lawful agreements.
1. Understanding the Legal Framework
The key legislation governing telecoms infrastructure on private land is the Electronic Communications Code, set out in Schedule 3A of the Communications Act 2003, as amended by the Digital Economy Act 2017. The Code applies across the UK, including Scotland, and grants telecoms operators statutory rights to install, maintain, and operate electronic communications apparatus on land. Scots property law considerations must be considered along with the Code, e.g. the rule that leases automatically renew on the same terms if actions are not taken to terminate, known as tacit relocation.
2. Code Rights and Landowner Protections
Operators acquire “code rights” by agreement or, failing that, via applications to, and orders granted by, the Lands Tribunal of Scotland. These rights include access to land, installation of apparatus, and rights to upgrade or share equipment. Importantly, the Code allows operators to seek new agreements even where existing leases are in place.
The Tribunal decision in EE Ltd and Hutchison 3G Ltd v Duncan and Others clarified that leases continuing under tacit relocation are considered “subsisting agreements” under the Code. This means operators cannot unilaterally terminate such leases to impose new, more favourable terms unless they demonstrate a specific need. This ruling strengthens the position of landowners, who now have greater protection against attempts to renegotiate leases without justification.
The Tribunal’s 2024 opinion in On Tower UK Ltd. v McLean contains a useful summary of Code decisions on rural rents.
3. Negotiation Tips for Landowners
When approached by a telecoms company, landowners should seek legal advice early. Of course, I would say that. However, telecoms law is complex and specialist advice can help to protect your interests. Code decisions under English law can inform negotiations with operators in Scotland. The devil will be in the detail of the rights the operators seek to agree with you, both operational rights and payments. While the Code has led to lower rental valuations generally, landowners can negotiate fair compensation for access, disruption, and visual impact. Be wary of the long-term implications of agreements. Operators will seek to bind successors. This may affect future land use or development plans.
4. Terminating Agreements
Paragraph 31 of the Code requires landowners wishing to terminate a code agreement to serve notice at least 18 months before the proposed end date and cite one of four statutory grounds: substantial breaches by the operator, persistent delays in payment, an intention to redevelop the land or the operator is not entitled to a code agreement. Operators can, and frequently do, challenge termination notices. Disputes are resolved by the Lands Tribunal. It is recommended that landowners seek to work with operators prior to serving any notice to explore whether a mutually beneficial resolution can be reached.
5. Planning and Infrastructure Considerations
The National Planning Framework 4 (NPF4) supports the rollout of digital infrastructure, especially in rural and under-served areas. However, planning authorities must also consider visual and environmental impacts. Operators are expected to explore alternatives such as site sharing or using existing structures before proposing new masts. Landowners should engage with planning processes and ensure that any proposed development aligns with local and national planning guidance.
6. Practical Steps for Landowners
- Review existing agreements. Check if leases are continuing under tacit relocation and assess their status under the Code.
- Document all communications. Keep records of negotiations, notices, and correspondence with representatives of operators.
- Obtain professional advice: solicitors, surveyors, and planning consultants can provide valuable support.
If you’re approached by a telecoms company keen to access your land, the best thing you can do is to put yourself in the strongest possible position to negotiate.
Navigating telecoms negotiations under Scots law requires a clear understanding of the Code, lease principles, and planning frameworks. With recent Tribunal decisions reinforcing landowner protections, those approached by telecoms companies are in a stronger position to negotiate fair and sustainable agreements. Early legal advice and proactive engagement are key to protecting your interests, ensuring your land is used appropriately and in accordance with your rights.
