Electronic Communications Code ConsultationPublished on: 03 February 2021
The Electronic Communications Code (“the Code”) came into force on 28 December 2017. Since then there have been several high profile disputes between the operators of telecom mast sites and landowners that have been resolved by court rulings. Not all of the rulings have gone in favour of the operators and some have denied operators rights under the Code.
The government is concerned that the Code is not operating in the way it was originally intended and recently opened a consultation on the shape, scale and scope of alterations to the Code. The consultation period ends on 24 March 2021.
The consultation is focusing on three areas of concern:
Obtaining and using Code Agreements, including failures to respond to requests for Code rights.
Low rents and concerns over the new Code rights may have resulted in landowners not wanting anything to do with Code Agreements and burying their heads in the sand when asked to grant Code rights. This may be causing delay in securing new mast sites and problems with the roll out of 4G and 5G networks.
The right to upgrade and share – when should these rights be available and what should happen when the conditions for automatic rights are not met? The government is also consulting on limited retrospective rights to share equipment installed before December 2017.
Operators occupying under old agreements cannot use the new automatic sharing rights under the Code. It looks like the government is considering retrospectively imposing these sharing rights in old pre-Code agreements in limited circumstances. This might be where sharing is required in the public interest, eg to expand networks without delay. If this suggestion is implemented there are likely to be disputes over the operators’ rights to exercise the new sharing rights.
Difficulties regarding the renewal of expired agreements. There were a number of court cases in 2019 and 2020 where operators failed to persuade the courts to impose Code right.
- on a non-occupying landowner (a third party operator occupied the property);
- where the occupying operator was holding over under an expired lease that was protected by the Landlord and Tenant Act 1954; and
- where an operator was occupying as a tenant at will after the expiry of a lease that was outside of the security of tenure provisions of the LTA 1954. The Court held the operator had no rights under either the old telecommunications code or the Code and could not apply for temporary rights.
The court’s decision in the second case was confirmed by the Court of Appeal in January 2021.
The government is likely to close the loopholes in the Code that were exposed by the recent court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.
The consultation may be the result of lobbying by operators who want to revise the Code to address its perceived shortcomings in the Code and the “loopholes” exposed by the recent Court decisions. Landowners will need to make their voices and concerns heard through their industry representatives (e.g. the NFU and the CLA) if they want to avoid or limit additional or enhanced rights being granted to operators or at least ensure that provisions are included in the revised Code to protect the interests of landowners.
The government is likely to close the loopholes in the Code that were exposed by the recent Court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.