The 2017 Electronic Communications Code (the Code) replaces the previous 1984 code, which was seen to be outdated and not fit for the purpose of encouraging and supporting modern digital communications.
It gives telecommunications operators statutory rights to facilitate the rollout of electronic communications networks (ECN) in the public interest and gives them certain powers to negotiate access to, and obtain rights to install apparatus on, sites.
This is an introductory guide to the main elements of the Code. As this is an evolving area of law for further information or advice please contact a member of our specialist telecoms team.
When does the Code apply?
Subsisting agreements made prior to 28 December 2017 under the previous 1984 code are retrospectively governed by the Code, but with some modifications. They may also attract security of tenure under the Landlord and Tenant Act 1954 (the 1954 Act).
Any agreements after this date are governed by the Code and do not attract security of tenure under the 1954 Act if the primary purpose of the agreement is to grant Code rights.
Who can exercise powers under the Code?
Operators: providers of ECN and providers of infrastructure for those networks – for example, mobile phone network operators, fixed line operators, broadcast and satellite providers (OFCOM maintains a register of operators).
What does the Code apply to?
Apparatus: electronic communication apparatus lines and structures that are designed or adapted for sending or receiving communications transmitted by an ECN.
What rights does the Code give?
Code rights are significant. They include the rights to:
- install, keep, inspect, maintain, adjust, alter, repair, upgrade and operate apparatus;
- carry out works to the land in this regard;
- connect to a power supply;
- interfere with or obstruct means of access to or from land (interference rights); and
- cut back any tree or vegetation that does or may interfere with apparatus.
These rights are granted for the purpose of providing the operator's network or infrastructure necessary to provide that network.
How are the Code rights obtained?
A Code right (or more than one, or all of the above) can be obtained in one of two ways:
- by a consensual agreement being entered into between the operator and the occupier of the site; or
- failing that, by the operator applying for the imposition of an agreement by order of the Upper Tribunal (Lands Chamber) (the Tribunal).
An order of the Tribunal can be sought if an operator serves notice on the relevant person (the owner or occupier of the site) requiring Code rights and the parties are not able to come to an agreement within 28 days.
The Tribunal will grant an order if any loss to the site provider is:
- capable of being compensated financially; and
- outweighed by the public benefit to be gained from the operator's proposal.
Code rights can be granted as "interim rights" (while a more permanent arrangement is negotiated) or "temporary rights (where there is existing apparatus but no right to retain it) for a set period, with agreed provisions regarding termination and renewal.
If the Tribunal imposes Code rights, it will also order consideration and compensation at what it considers to be the appropriate level.
What are the key differences between the old and new codes?
The Code is more heavily weighted in favour of operators than landowners. Key provisions include:
- The changes to the basis of valuation under the Code means that the rent payable by operators for telecoms sites has significantly reduced;
- Operators have a right to seek an agreement or order of the Tribunal to enter on to land to inspect its suitability as a telecoms site. These inspections are known as Multi Skilled Visits or MSVs.
- Termination of Code rights and removal of apparatus will take longer: 18 months notice of termination is required (citing one or more of the limited statutory grounds) and a Tribunal application, followed by a 28 day notice for removal and possible further Tribunal application;
- Unlike the old regime, there is no statutory right to require operators to move their apparatus to a new site if redeveloping the site they currently hold and so "lift and shift" provisions need to be negotiated and set out in the Code agreement;
- The operator has an automatic right to upgrade apparatus and to share occupation without the landowner’s approval provided there is no adverse effect on the appearance or landowner’s enjoyment and it does not cause loss or damage to the landowner although operators have successfully obtained unlimited upgrade rights at the Tribunal;
- The operator has the freedom to assign its Code rights to another operator without the landowner’s approval but can be required to give an indemnity guarantee (Authorised Guarantee Agreement). This is however often resisted by operators;
- It is not possible to “contract out” of the rights granted by the Code.
