The intricacies of tenancy agreements and the establishment of essential communication networks can often be an overlooked detail can have a profound impact – a frequent one is the wayleave agreement. This vital document grants network service providers the necessary rights to install and maintain equipment over third-party lands, a crucial component for the seamless deployment of full-fibre cables.
Without a secured wayleave agreement, businesses might find themselves tethered to antiquated phone lines, rendering their broadband connection unreliable, slow and unable to keep up with the network demands of newer technologies.
In this blog post, we explore the significance of wayleave agreements for businesses on the brink of signing tenancy agreements. Understanding the nuances of this agreement is paramount, as failure to secure it could result in network operators being denied access to install the essential infrastructure needed for high-speed, reliable internet connections.
What is a Wayleave?
A wayleave is written consent from the owner (or a party authorised to grant consent on behalf of the owner) giving the operator rights to install, maintain, adjust, alter, repair, replace, renew and add to, all apparatus in the owner’s property or land.
Why is a wayleave required?
All licensed operators are bound by the telecommunications code – www.legislation.gov.uk/ ukpga/1984/12/schedule/2. The telecommunications code states that operators require a wayleave to access third party property and land to document that the owner of the property has permitted the supplier to install and retain their apparatus on their property.
If a customer has ordered services,and owns their property or has rights under their lease to allow the work,a wayleave is not required as the sales contract documents their consent to the installation.
How long does a wayleave take to obtain?
The average wayleave will take approx. 8-12 weeks, however there are many factors that need to be considered which will impact the time it takes.
An example of these are:
- Whether the landlord instructs a surveyor to look at the route and solicitor to review the wayleave terms
- Whether the landlord is happy with the cable route proposed by the operator or requires a change
- Approval of the landlord’s fees for dealing with the wayleave
- Unreasonable terms in the wayleave agreement
- Licence to alter requirements
- No lease
- Listed building consent
- Landlord and tenant disputes impacting progression of the Wayleave.
Can a landlord refuse to sign the wayleave?
Operators do have statutory powers under The telecommuncations code to be able to install apparatus without the need for a signed wayleave in circumstances where the landlord/owner is unreasonably refusing to sign the wayleave.
A key principle of the code is that no one ‘should unreasonably be denied access to an electronic communications network or to electronic communications services’ (Paragraph 5 (3) of the code). Some operators believe that delay in securing an agreement can amount to denial of such access.
Operators would only consider using these code powers under exceptional circumstances and when they are left with no other alternative.
How long does the wayleave agreement last?
Terms of the wayleave will vary depending on the landlord’s requirements; they can be tied to the term of the customer’s lease or can run indefinitely (Openreach’s standard term) or for 10-15 years (Virgin Media’s standard term).
If the ownership changes the wayleave is usually assigned to the new owner and the wayleave rights will continue to apply.
How the customer can help with delays in obtaining Wayleave
A standard wayleave is between the customer’s landlord and the operator and if a tri-party wayleave is requested it is between landlord, customer and operator. The customer therefore has more influence over the progression of the wayleave than Redcentric as they have a relationship with their landlord. Below are some examples of how the customer can help progress the wayleave:
Landlord’s contact details
The wayleave process cannot start until the customer provides the correct information for their landlord. Ideally customers will provide Redcentric with details of their landlord at point of order. The operator will require a point of contact, email address and telephone number. Applications are issued via email so an email address rather than postal address is required.
Early engagement of the landlord
If a customer leases their property and they do not have rights to allow the work under their lease then it is very likely a wayleave will be required. A customer should be able to tell Redcentric whether permission for the work / wayleave is a possibility before the operator surveys the site. If customers can provide the required landlord information in readiness of their order reaching the operator’s wayleave department (wayleaves are submitted after site survey stage) and the customer makes their landlord aware that they will be contacted for a wayleave in advance of the operator making contact, this will help minimise response times.
The route needs to be approved by the owner as part of the wayleave, to avoid the landlord disputing the route and requesting another site meeting /site survey to look at alternatives – the customer can engage the site/landlord contact as early in the order process as possible. If the landlord can be present at site survey, when the planner is looking at the route, this will avoid additional site meetings.
3rd party land
Occasionally cable routes cross land owned by multiple owners and owners that are not the landlord of the customer. This will not be known until the order completes survey stage and the planner has drawn up a route plan. In majority of cases the customer may not know who the third party owners are but where they do know (neighbouring land/property) it will speed up progress of the third party wayleave if customers can provide neighbouring owner details as otherwise operators will need to investigate and carry out Land Registry searches.
Licence to alter
A Licence to Alter is a document between the customer/ tenant and their landlord. It is an agreement altering the customer’s lease so that the installation is included in their lease rights. The operator may then be able to complete a Tenant’s wayleave with the customer or may also need a wayleave with the landlord in addition to the Licence to Alter. Licence to Alter documents cause delay as often they need to complete before the wayleave can progress. If the customer can engage the landlord early in the process to identify if a Licence to Alter is needed at the start of the order process, this will speed up completion of the wayleave.
Tri-party wayleave agreements
Occasionally a landlord will want the customer to be party to the Wayleave agreement. This means that the Wayleave will be between the landlord, customer and operator. The customer may want to instruct a solicitor to manage and review the wayleave’s terms and conditions. These types of wayleave agreements can take longer to complete, as an additional party needs to review and agree the wayleave terms. The customer can help speed the process up by ensuring that their solicitor reviews and responds to any wayleave negotiations as soon as possible.
It is not possible for an operator to obtain a wayleave agreement prior to the customer’s lease completing. Where a customer has not yet completed their lease they should indicate this at point of order and advise when it is likely to complete, Redcentric can then make the Operator aware so that they can engage the landlord on completion of the lease.
Listed Building Consent
If Listed Building Consent (LBC) is required then the
Operator will need this to be obtained prior to the Wayleave completing. The majority of landlords will not progress the wayleave until they have proof that the LBC is granted. It is the responsibility of the customer to obtain the LBC.
Unless otherwise agreed customers will need to pay any wayleave fees requested by their landlord. The fees can vary but if the landlord instructs a managing agent or surveyor to review the route and a solicitor to review the wayleave terms the fees can be approximately £750+VAT for a surveyor and £1200-£1500+VAT for a solicitor. Where fees are high the operator will negotiate with the landlord to reduce their fees but it is beneficial for the customer to also discuss these with their landlord to ensure fees are reasonable and that the customer can meet them.
Non-standard wayleave terms
Occasionally landlords will insist on terms that an operator cannot agree to, for example high indemnity, terms that puts the services at risk or puts the operator in breach of the Telecommunications Code. Operators will negotiate the terms but where a compromise cannot be met it is beneficial for customers to speak to their landlord about the impact the delay in reaching a compromise is having on the delivery of the service. If the landlord is being unreasonable then the customer may also want to review their lease rights.
Operators do have statutory powers under the Telecommunications Code to be able to install apparatus without the need for a signed wayleave in circumstances where the landlord /owner is unreasonably refusing to sign the wayleave. Operators would only consider using these powers under exceptional circumstances and when they are left with no other alternative. Customers should therefore also investigate their lease rights to ascertain whether the refusal is in breach of their lease.
Landlord and tenant disputes
If the customer has had any dispute/issues with their landlord that may impact the wayleave then they should inform Redcentric at point of order so that the operator is aware that the wayleave application is sensitive and manage the landlord accordingly. The landlord may refuse to progress the wayleave until any issues are resolved so customers should try to ensure that any issues are resolved before the wayleave documents are issued.
In conclusion, the world of business connectivity is evolving rapidly, and understanding the nuances of wayleave agreements is paramount for ensuring a smooth and uninterrupted transition. As we’ve explored in this blog, the implications of overlooking or underestimating the importance of securing a wayleave agreement can be significant.
Remember, a well-negotiated and secure wayleave agreement not only ensures the deployment of essential full fibre cables but also positions your business for future-proof connectivity. Stay informed, be proactive, and navigate the wayleave landscape with confidence, knowing that your business is equipped to thrive in the ever-evolving digital era.