During a recent roundtable hosted by The Lawyer and Cornerstone, both sides of a vibrant and passionate discussion about the rapidly changing world of UK digital connectivity were aired. This transcript offers a snapshot of the key issues in an apparently polarised discussion that is likely to continue for some time.
On the panel
Rob Booth, General counsel, Crown Estate
Leona Briggs, Partner and head of disputes and risk, Osborne Clarke
Matt Byrne, Deputy editor, The Lawyer
Danielle Drummond-Brassington, Partner, CMS
Belinda Fawcett, General counsel and property and estate director, Cornerstone
Eleanor Griggs, Legal advisor, NFU
Catherine Haslam, Partner, DWF
Isabel Lich, Associate, Mishcon de Reya
James Lilley, Associate, Pinsent Masons
Carlos Pierce, Head of legal projects, strategy and director of the electronic communications programme, Cornerstone
Glen Sinclair, Head of Mobile Infrastructure & Sites Legal Affairs, EE
Charles Trotman, Chief economist, CLA
Michael Watson, Partner, Shulmans
Simon Webb, Head of professional services, Workspace
Richard Willcox, Senior associate, Shoosmiths
Matt Byrne, deputy editor, The Lawyer: Cornerstone supports the Government’s intention to improve the UK’s digital economy with the help of the updated Electronic Communications Code (ECC) legislation. Carlos, a one-word question: why?
Carlos Pierce, Cornerstone: Connectivity is now a basic need, it’s no longer a luxury. We all depend on connectivity in how we work and how we do business. That’s only going to increase, whether that’s mobile banking or how we run our lives. It’s about putting connectivity at the heart of what we do and the economy – and that’s been recognised by the Government.
I’m an optimist, but also a realist, and we do have a lot more work to do in terms of engagement. Hopefully, in years to come, we will look back at this as a time when we had to recognise that we needed change.
Byrne: Does this debate simply boil down to finding a way to moving an apparently inflexible mindset on the part of landowners? Explain to us why you aren’t the bad guys?
Belinda Fawcett, Cornerstone: We’re doing everything we can to collaborate. I feel that there is this sector of the property industry, and a lot of property agents out there, who act on the landowner’s side who are deliberately trying to scupper the implementation of the code. They don’t want it to work, because ultimately not only will it lead to a reduction in rents that they receive, but also in the income they receive for acting as agents.
Danielle Drummond-Brassington, CMS: Collaboration and discussion has to happen. The usual rules of property negotiation have gone out of the window, they have changed fundamentally. An example is the agreement of fees – it’s the little things that are causing some of the blockages.
Byrne: What can we do about that, do you think?
Isabel Lich, Mishcon de Reya: We’re finding that when operators’ representatives negotiate they start with, “if you don’t give us everything we want, then we’re going to go court” – which doesn’t really help you get to a collaborative approach as that’s when the landowners will immediately retreat.
Simon Webb, Workspace: I’m not going to defend landowners’ agents, but the operators’ agents are quite an experience. There is a lack of engagement. There’s no negotiation, no discussion. It is starting to improve and there are certain operators who are willing to engage and they are the ones who go on site and upgrade quicker. The very difficult ones go to the back of the queue.
Charles Trotman, CLA: The problem is that the code came in 2017, nearly two years ago, and we’re still having the same conversation that there’s either a lack of engagement or a breakdown in communication. What seriously concerns me is that it feels we’re back to square one again. It’s in both parties’ interests to negotiate and to compromise.
Fawcett: We’ve done so much training over the past two years, trying to brief suppliers and work with everyone, but we’re still not getting that engagement.
Drummond-Brassington: There has to be a different dialogue from all agents, not just site provider agents, but also operator agents as well. It’s all correspondence but no dialogue.
Catherine Haslam, DWF: My perception is that the main sticking point is the amount of money and [a mentality of] “if you’re not prepared to pay me then I’m not going to talk to you about it”.
Richard Wilcox, Shoosmiths: My clients, who tend to be farmers, are not familiar with the code. They’ve got their own issues with the sites and they know their land. Operators come on with standardised letters and standardised leases. They have paralegals and it’s being done as cheaply as possible. It isn’t a tailored response.
Haslam: First of all, I don’t have a team of paralegals doing this work. Most of the lawyers involved are qualified solicitors. We obviously need a set of templates because you can’t roll out over 25,000 sites without some form of standardisation.
Byrne: Is there something more that the legal community can do?
James Lilley, Pinsent Masons: I think that one of the greatest issues is the polarity of debate because there are lots of common agents and the individuals are polarised so there’s confirmation bias. The only way is to step away from your biases and entrenched views. You have to think what’s reasonable.
Trotman: The problem that my members have is that they don’t understand the code and the agents who represent my members also don’t understand the code.
Byrne: What practical steps do you think could be taken to move the debate away from the ‘he said, she said’ level?
Pierce: Where we have seen successful deals is when we see engagement. I think it’s about how we turn this into a progressive discussion and how we work together to break down that confirmation bias.
Rob Booth, Crown Estate: A bit of dial-up on both sides tends to have a really positive impact.
Michael Watson, Shulmans: Most of this discussion has been about the logjam between the agents and the negotiators. I get a lot of work when there are not surveyors involved, a lot of direct instruction from landowners who come to us and tell us that “I’m just not interested at this price”. No discussion about surveyors, or recommendations for an agent. They just need you to defend their property interest.
Fawcett: What do you say to your clients who come to you with that comment?
Watson: I give them comprehensive advice on the code and then they can take their own decisions. I don’t have a duty to deliver 5G to the country. I am at the mercy of my clients and I do what they instruct me. The only thing that will ever work [to prevent people from ignoring court orders] is a totally draconian power.
Drummond-Brassington: A lot has been talked about money, but for the people that I’m not talking to it’s not necessarily about the money. I accept that I work for a lot of big institutions, but it comes back to this point about collaboration. We’ve got very entrenched positions but what my clients are saying is that if this is how we’re dealing with the survey and then the mast, what happens when we want to redevelop in five years? They don’t want that problem. I think for cities and urban areas it’s this lack of engagement now that is putting people off because of what it means for the future.
Haslam: It’s interesting you say that there will be litigation at the point your client wants to redevelop. I think that if an operator knows that someone has a genuine interest to redevelop they are not going to litigate that.
Watson: Isn’t the fundamental question here, what is there to incentivise engagement? Why would they engage? How do you incentivise somebody to want to subject their valuable assets to everything that having telecoms kit involves? ‘Taking one for Team GB’ simply doesn’t work.
Webb: That is the big hurdle and it’s still viewed as a burden.
Pierce: Is that just because we’re at a certain moment in time? We’ve been through this in the utilities industry. With gas, electricity and water, we just accept it. Is it not just a case of this is where we are right now, and we’ll come through the other end? For me, it’s about two discussions: money in rural areas, while in London and urban areas, it’s about redevelopment.
Fawcett: Do you consider putting telecoms equipment into a building or a piece of rural land as a burden?
Watson: There are two questions there. Does one consider it a burden, and does it benefit the community? I think you should be comparing the burden and the benefit. I know that we should be all altruistic and take the hit because it’s good for the community but I’m afraid people don’t work like that. So, the question is how do you incentivise?
Pierce: This is about leadership in our industries. It’s about connectivity for current and future generations, and I’d encourage everyone to consider the very positive impact that we can all have, to move the conversation on to one about enabling better connectivity.