Wayleaves – Our key hints and tips to make the process smoother

Rarely, will most people go a day without accessing the internet, and for businesses, their success relies on unobstructed connectivity. Ensuring all necessary wayleaves and permissions are in place so that tenants can enjoy unobstructed internet access, should not be overlooked.

We have considerable experience in advising our clients on the fundamentals of wayleave agreements. We have put together a run through of our top tips to both landlord and tenant clients.

For tenants

How do you ensure you have internet connectivity in place from day 1 so that you can hit the ground running?

Preparation is key – If you are leasing your premises then you will likely need to run cables across areas of a building or land you do not lease, and a wayleave agreement may be required. A wayleave is essentially written permission from the landowner to the telecomms operator, allowing them to install cabling through the landowner’s property.

When should you consider the need for a wayleave?

As soon as possible – the earlier you speak to the landlord and your chosen operator, the earlier the process can start and less likely the risk of delays.

If a wayleave agreement is required, how do you know if your chosen telecomms operator is a “Code Operator”?

Check on Ofcom’s website for a list of “Code Operators”. Register of persons with powers under the Electronic Communications Code – Ofcom. The Electronic Communications Code (‘the Code’) is a set of rights that are designed to facilitate the installation and maintenance of electronic communications networks. Code Operators are subject to the Code. If your operator is on the list, then you will need a telecomms wayleave. If they are not on the Ofcom register and therefore do not have powers under the Code, you may instead require a licence for works/alteration rather than a wayleave – this should be checked with your landlord as soon as possible.

Who needs to be a party to the wayleave?

It all depends on the route the cables will be taking. The general rule is that the parties will be the operator and anyone else who owns land that the cables will run through or over. This will also usually include you, as the tenant, as the cabling will need to go through the leasehold demise to the relevant communications room.

How do I know what route the cable will take?

You will need to speak to your chosen operator, and they will survey the site and prepare plans. You will then need to send the plans to the landlord and ask them to confirm who will need to be a party to the wayleave agreement, if the route is acceptable to them. The landlord will need to confirm they are happy with the route of the cabling. The tenant should also make sure that they are happy with where the cables will be running through the leased demise.  Top Tip –Is the easiest route being presented on the plans? Remember, the operator may have taken the shortest route, but if additional consents and additional parties are required to agree to the wayleave, shortest may not necessarily equate to the quickest approach to completion.

Who drafts the wayleave?

Usually the landlord, although the landlord will likely be open to comment from the operator.  Top Tip – Unless you have a pressing need to use a specific operator, there is usually no harm in asking the landlord first if they have a preferred operator to work with – It may be that the landlord already has in place an agreed form of wayleave with an operator or has agreed a deal or process with one operator which will make the process a lot smoother for a tenant.

Who pays the costs of the wayleave?

Usually, the party requesting the wayleave will pay, although it will depend on the terms of the lease.

Who should be responsible for pushing the wayleave agreement to completion?

Whilst the landlord and the operator will likely look to complete the wayleave agreement as soon as possible, it is the tenant who stands to lose out if the agreement is not completed in time. Tenants should do all they can to keep the progression and completion of the agreement on track. Top Tip – The wayleave agreement should be dealt with at the same time as the lease and should not be left as an afterthought.

Communication

Wayleave agreements can be cancelled by the Operator where they take too long to complete.  This can be avoided with clear communication between tenant and operator. A failure to regularly update the operator may be taken as a lack of interest and intention to progress.

For Landlords

Your tenant has asked for a wayleave agreement, and they have sent you plans prepared by the operator. As landlord, what should you do to ensure your property and rights are protected and the wayleave is entered into without delay?

Review the plans

Check the plans presented. Are you happy with the route proposed or do you foresee complexities in the design? The operator may be suggesting the shortest route, but is that in the landlords’ best interests? A longer route for the operator, using risers and avoiding drilling through walls, may prove easier to document.

Are there any site specific requirements?

Will you need the operator to replace bird netting, or install fire stopping where drilling through walls? These issues all need to be communicated to your solicitor so that they can be incorporated into the wayleave agreement. Any specific requirements to make good damage will need to be set out clearly in the agreement.  Top Tip – Landlords will generally be given generic RAMS (Risk Assessment and Method Statements) so if you have anything specific the operator needs to do, ensure you notify the operator and your solicitor.

When should the operator install cables?

Cabling should only be installed once the wayleave agreement has been completed. Once the cables are in place, they will be protected by statute (The Electronic Communications Code). Top Tip – Ensure that your on-site team do not allow cables to be installed until your solicitor has confirmed the wayleave agreement has completed. Approval of the plans to the wayleave agreement alone is not sufficient.

Who should pay your costs?

This will depend on the terms of your lease but in general, a tenant should cover the costs of the landlord and its professional team ’s professional costs in reviewing the application and completing the agreement. Rarely will an operator pay the costs of a wayleave agreement.

I want to avoid having to grant separate wayleave agreements to all my tenants. Is it possible to have just one wayleave agreement in place for my building?

Yes. You will need to select and contact an operator and explain that you want a “spine wayleave”. A spine wayleave is essentially an agreement that allows connectivity to all floors of the building, allowing your tenant’s to just “plug in” when you grant them a lease. Such an agreement would be at your expense (unless an arrangement can be achieved with the operator). There is a risk that your tenant may not want the operator you have chosen and will request a separate wayleave.

How we can help

If you would like to find out more about how our team can assist you navigate the complexities of wayleave agreements, please contact our real estate team.