Electronic Communications Code consultation
UK Government publish their response to it's consultation on the proposed legislative changes to the Electronic Communications Code
In January 2021 the Government launched its consultation into proposed legislative changes to the Electronic Communications Code (the ‘Code’). On 24 November 2021, the Government published its response.
The Government notes that, whilst the Code was introduced to support and enhance the process for delivery of telecommunications infrastructure throughout the UK, stakeholders involved in the consultation identified a number of issues, frequently encountered from the outset of a matter, which hinder that process. The Government has put forwards 3 key proposals seeking to address these issues.
Obtaining and using code agreements
Operators will have a duty to consider Alternative Dispute Resolution (ADR) in order to settle disputes or narrow disputed issues before applying to the courts in relation to new agreements, as well as renewals and termination. Operators must make landowners aware that ADR is available, but is not mandatory. Operators should also have a complaints procedure in place.
Rights to upgrade and share apparatus
The existing rights for operators to upgrade and share equipment installed before the (new) Code came into force are to remain, provided that there is no more than a ‘minimal’ impact on the owner or occupier of private land either by appearance or as a general burden.
Part 5 of the Code deals with renewals and the termination of expired Code agreements, but only where there is a ‘subsisting agreement’ as defined by the Code. It doesn’t capture Landlord and Tenant Act 1954 leases or other matters where there isn’t any evidence of continuing Code rights.
The Government proposes amendments to the Landlord and Tenant Act 1954 in order to align the procedures for renewals and termination closer to Part 5, by imposing new Code agreement terms and enabling the Upper Tribunal, rather than the County Court, to hear disputes relating to agreements governed by the Landlord and Tenant Act 1954.
Where there is no evidence of continuing Code rights or a previously expired (old) Code agreement, operators in sole occupation will be able to seek a new Code agreement under Part 4.
Time will tell if these proposed changes are made into law and, if they are, what impact they will have in practical terms. Whilst they propose to solve problems highlighted by stakeholders presently, and they may well achieve their aims, there is the potential for these changes to create new issues over which operators and landowners become embroiled in disputes. What, for example, is ‘minimal’ impact? The answer is most likely “It depends on the facts of the case”, which in turn may lead to further disputes.
These continue to be interesting times in the area of Electronic Communications, and we shall have to wait and see what happens next.
For more information or to discuss any issues surrounding, construction, housebuilding, infrastructure, property investment and development or social housing, contact our built environment solicitors.