The New Electronic Communications Code (the “Code”) has been in force now since 28 December 2017 and so now seems an appropriate juncture to revisit the key provisions and assess whether they have made much of a difference (yet).
Some recent cases put a little flesh on the bones of the Code and begin to answer some of the questions posited by various commentators when it first came into effect. The precedents these cases have set are summarised below:
- interim Code rights can be imposed, which need not be a simpler and shorter agreement than for longer term arrangements and that judges must ‘have regard to the public interest in access to a choice of high quality’ telecoms. This standard is supported by a two-pronged test:
- the benefit of the telecoms to the public must outweigh the prejudice to the landowner; and
- that prejudice must be capable of being adequately compensated by money.
The operator needs to show that it has a ‘good arguable case’ for the court to impose an agreement, which, according to the judgments in these cases, appears to be quite an easy hurdle to get over, albeit the courts would look at, amongst other things: whether there are particular ‘aesthetic or personal considerations’ of the owner which might outweigh the money; the operator’s conduct throughout; and whether the rights are not intrinsically objectionable to the owner.
- the ‘right to install’ under the Code extends to preliminary work to enable the equipment to be installed. This makes sense: it avoids landowners from having an unfair bargaining position.
- the Code entitles the courts to impose a right of access for an operator to do a survey. This also makes sense: there shouldn’t need to be a fully-fledged agreement before an operator can determine whether a site is suitable in the first place.
The courts seem to have got the Government’s memo that the public benefit from Code rights is paramount and so landowners seem to be facing an uphill struggle. However, as I mentioned in my earlier article, given that landowners face the prospect of lower rents under new Code agreements (as the Code disregards the fact that a site has a telecommunications use when assessing the market value), they may be a tad more disputatious…
One thing landowners should be reminded of is that the Code does not have retrospective effect and so any Old Code agreement should be retained and, if possible, renewed. Expect disputes to continue as a result!
To show how high this topic is on the Government’s agenda is, it produced a consultation paper relating to ensuring tenants’ access to gigabit-capable connections. The consultation ran from October to December last year. While the comments on this are yet to be published, the paper outlines a target to make gigabit-capable networks available to 15 million premises by 2025, with a national rollout by 2033. To help achieve this target, the consultation is consider whether to vary the Code to include an obligation on owners to ‘facilitate the deployment of digital infrastructure when they receive a request from tenants’ and give operators the power to use magistrates courts to gain access to properties in the event that the owner fails to respond.
“one of the least coherent and thought-through pieces of legislation on the statute book”.