An everchanging landscape, Part 2 of the Product Security and Telecommunications Infrastructure Act 2022 ("the PSTIA") makes further changes to the 2017 Electronic Communications Code ("the Code").
For those unfamiliar with the Code, it confers rights on electronic communications operators to install and maintain apparatus on land, and governs the relationship between the operators and their landowners / site providers.
Following consultation, the PSTIA received royal assent on 6 December 2022. Since then, only a few of the intended changes have been brought into force so far, with the rest to follow by further regulations.
There are two key changes made by the PSTIA, relevant to both Landowners and Operators coming into force later this year:
1. A duty to consider Alternative Dispute Resolution (Section 69 PSTIA)
Due to come into force on 7 November 2023, Section 69 of the PSTIA imposes a duty on Operators to consider the use of Alternative Dispute Resolution (ADR) to resolve or narrow down disputes between the parties, before making an application to the Court / Tribunal. The Court will be required to consider any unreasonable refusal to engage in the ADR process when determining what costs are to be awarded.
Not only will these provisions be inserted into paragraphs 20, 32 and 33 of the Code, but there will also be an obligation on Operators to include information about ADR when serving particular notices requesting Code rights to be granted.
Note that OFCOM is currently consulting on a revised Code of Practice and revised templates for statutory notices with the templates being amended to make clear the requirement to consider and offer ADR.
2. Interim arrangements for Operators and Landowners (Section 68 PSTIA)
Section 68 of the PSTIA, also due to come into force on 7 November 2023, amends paragraph 35 of the Code so that either party may apply to the Court for an interim order to amend the terms of an existing agreement, pending determination of a full application.
Therefore, either a Site Provider or an Operator will be able to apply to the Court for an interim order (pending determination of a full application):
- Stating the consideration payment to be made by the Operator to the Site Provider under an existing agreement; or
- Otherwise, modifying other terms of the existing agreement.
This is an important change and whilst not fully aligned with the Landlord and Tenant Act 1954 regime on interim rent (where any interim rent award is calculated by the notice period not on the date of application), the change will have wide implications for Operators and Landowners particularly where sites may have been subject to pre-Code "high" rents.