Wayleaves: The Right to Install, Maintain and Repair a Network on Another Person's Land

By Rob Bratby, Partner at Olswang LLP

Note: This information is provided by way of background information and is not legal advice.

A wayleave is a contractual licence granting the operator of an electronic communications network the right to install, maintain and/or repair their equipment (or "Apparatus") on a landowner's and/or occupier's land.

How do I obtain a wayleave?

Most wayleaves are agreed commercially with the landowner.

If a wayleave cannot be agreed commercially, then provided the installing operator has been designated by Ofcom as an operator with Code Powers, then the Electronic Communications Code ("Code") as updated by the Communications Act 2003 provides a statutory backdrop for negotiations. That backdrop has led to market norms that apply even where the installing operator does not have Code Powers.  

The following checklist coupled with the sample agreement attached provides general background for negotiations, but does not comprise legal advice:

·         Who should the wayleave be with, and what consents are required? Ideally the wayleave should be granted by the owner of the land. Whilst occupiers may be able to enter into wayleaves, they will often need the consent of their landlord, and land owners may need the consent of their mortgagee or tenant.

·         What is the scope of the wayleave? Is the wayleave linked to the provision of certain services to certain customers, or unlimited in scope?

·         How much consideration is paid for the wayleave?This will depend on the circumstances. Whilst it is not unusual for some wayleaves to be granted for no fee, the fee can include the landowner's legal and other costs, a one-off payment and/or an annual payment.

·         Does the wayleave bind future purchasers?This is the ideal position. However, landowners are often unwilling to agree to this. The right should include access on reasonable notice with or without vehicles for apparatus installation and maintenance (including repairs, removals, alterations, upgrades and renewals).

·         Network operators should obtain sufficient insurance (at least to the level of the offered indemnity) in place to cover any liability under the agreement including for fraud, damage to property and personal injury.

·         The wayleave should require land owners and/or occupiers to not knowingly or recklessly permit any interference with the apparatus or the ability to exercise the right granted by the wayleave. The agreement should set out notice requirements for any planned renovations to the land or development that may interfere with the apparatus. Under the Code, landowners must usually bear the cost of relocating the apparatus during the renovation or development; however, this is subject to negotiation.

·         If the landowner terminates the agreement and requires the removal of the apparatus, adequate notice must be given. The network operator may also request a right to terminate. If the operator has Code Powers the landlord is not able to contract out of the provisions of the Code that restrict the landowner's right to require the removal of the apparatus. However, the wayleave can address the contractual consequences of the service of a Code Power Notice in a way that incentivises the Code Power operator to not serve a counter-notice.

·         Any sub-contracts for the installation and maintenance of the apparatus should mirror the terms and obligations of the main wayleave agreement and include adequate insurance provisions.

·         The length of the agreement will depend on the negotiations. The licence may expire at the end of the tenancy or it may be renewable subject to an additional one-off fee. The example below is a licence terminable on notice in certain prescribed circumstances.

The Country Landowners and Business Association, the National Farmers Union and the Government are working towards more standardised Wayleave terms and conditions to facilitate the roll-out of next generation broadband networks.

Last updated May 2011.

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olswang-wayleave_agreement.doc92.5 KB