The Utility Easement Act facilitating the roll out

over the population. Some private interests benefits more than others, at the expense of some private interests more than others.

A topic of interest in addition to the changed power relations of the negotiation situation is related to the fact that the regulations of compensation for expropriation are sprung in a society different from today, in this case especially when it comes to infrastructure development. Such enterprises used to be governmentally controlled and monopolistic in its character. This has changed, and a privatisation trend brings new questions to how compensation for such enterprises should be measured. The clear dichotomy of public interest versus private is not clear in the same sense anymore, which is actualized in the case of utility easement for 3G mast infrastructure.

9.1.5 Public interest versus private interest?

An aspect principal interest of the case is the fact that some land areas are more desirable from a mast position perspective, due to topographic reasons. This was before the regulatory change in the Utility Easement Act of 1 August 2004 to the benefit of the land owner, from a negotiation perspective. The value of the land is raised, also from the competition of several operators aspiring to construct a mast at such a particular site. The rental contract that the operator likely has to sign would have a time limit, and the price would be the subject for negotiation. This would give the land owner the benefit, and the land owner could after the time of the rental contract make other use of the land, if the land owner would not want to prolong the leasing. This beneficiary position is lessened with the operators’ possibility to apply for utility easement for the mast site. This can be seen as an example of when regulatory means distort a market situation, to the loss of the private interest, in the name of the public interest (of telecommunications).

In order to discuss a principal problem with the compensation levels of the utility easement for 3G mast sites we can return to a case mentioned in chapter 4.6 above. The case regarded a property in the municipality of Ronneby, in Blekinge and the Land Surveying Agency set the compensation for the mast site intrusion on the property to SEK 3000. This is the sum that was set to compensate for the reduction of the market value of the property, as a result of the utility easement (Section 13 of the Utility Easement Act referring to chapter 4 of the Expropriation Act). The property owners appealed the utility easement decision to the Land Court, which raised the compensation to SEK 171 000 (Case nr F 750-05, 14 Dec 2005). The operator appealed this decision to the Court of Appeal over Skåne and Blekinge, which lowered the compensation back to the original level of SEK 3000 (Case Ö 152-06, 24 Oct 2006). The case was closed on 24 October 2006 and the Court stated, in relation to how to measure the value of the property:

“…when deciding the compensatory level, it shall not be taken into account that a land area is of particular interest for those seeking utility easement for a mast. In this context it should be observed that the development and preservation of networks for electronic communication is founded in a strong public interest. It is, not the least from an environmental and planning and building perspective, important that the infrastructure that is being used for electronic communications is collaboratively used to as high extent as possible. This is clear from both the Electronic Communications Act as well as the Utility Easement Act (compare prop. 2003/04:136, p 18 f.). There is, given this background, no reason when measuring the compensatory level of letting

the market value to be influenced by the fact that there may be many competing network owners that are interested in a certain property for the same purpose” (Skåne and Blekinge Court of Appeals, 24 Oct 2006, p 7, author’s translation).

When it comes to the valuation of land, the fact that there may be a competitive situation regarding a specific part of property that is extra desirable in a radio communication sense, can not be accounted for when measuring the level of compensation to the property owner for having a mast put up on the property. This favourable market position the property owner is denied with references to the strong public interest in telecom infrastructure. The idea is easy to understand, any infrastructure development of public interest falling under the Utility Easement Act would run the risk of being hindered by a few land owners antagonistic attitude. The interesting part lies here in what is included in the “public interest” that justifies this degradation of land owners’ rights.

The 3G development, including the mentioned case, is an example of when the “strong public interest” is in line with operator interest. The case is in line with the law (although Land Court judge Andersson was of a different opinion regarding the compensatory level, developing a statement in a legal dogmatic balance act of highest proportions), in this case the regulation for compensation levels in the Expropriation Act.

The changes in the Utility Easement Act by 1 Aug 2004 can be seen as an example of how the government teams up with private interest in shape of operators trying to fulfil coverage conditions for an activity that is aimed to benefit their interests, on behalf of property rights and the ones owning land that happen to be of a strategically important location in the operator roll out. This is done under the dichotomies of private versus public interests, but it is a fact that part of the public interest in this case includes operator interests.

The Swedish Constitution states that property right can not be the subject for expropriation other than “where necessary to satisfy pressing public interests” (Ch 2, art. 18, the Instrument of Government). And the public interest, in the case of 3G masts included in the Utility Easement Act, is mixed with operator interest.

In the case of a granted utility easement for a mast, the operator may use the designated land area without time limit, and to a compensation measured from how the land has been used before, for instance as pasture land, which renders a low compensation. The land owner loses the control over the future use, and ends up in a worse negotiating position, to the benefit of public interest, and the operator. One can imagine the reaction of the land owners that do not want a telecommunications mast on the property, to a low one time compensation gets stuck with the mast forever, no matter their opinion. The Utility Easement Act was changed and the property owners in the negotiation position lost

a) the possibility to say no, and the strength in negotiation that goes with it;

b) the time limit of usage; which includes both the possibility of a future chance to say no, and future chance to change use of the land;

c) the rental possibility, which means less income, or compensation; and

d) the benefit of being able to rent to the highest bidder if having a topographically important position.

This is the reason the LSA handling officers do not favour these types of utility easements, because of the possible conflicts. What is the issue of interest here, from a planning point of view, is perhaps not as much the expansion of the utility easement to include wireless