Consultation Outcome: Consultation on Changes to the Electronic Communications Code

Published 24 November 2021

After 9 long months of waiting with bated breath government’s response has landed.

A link to the governments response is here.

We have set out some of the key proposals below.

1. The statutory valuation framework is outside of the scope of the consultation and will remain unchanged.
   
   
2. There is a duty to consider ADR, with potential cost consequences for those who refuse to engage.
   
   
3. There will be implemented a new statutory requirement for all operators to have a complaints procedure in place concerning conduct, and handling of complaints, in respect of code agreements.
   
   
4. There will be no fast track court procedures for code.
   
   
5. Wholly unresponsive landowners could see code rights imposed upon them by the FTT for up to 6 years. The aim being to create a faster process, reducing the number of connectivity gaps that arise due to a failure by the landowner or occupier to respond.
   
   
6. There will be no specific or alternative means of enforcement of code rights outside of existing laws.
   
   
7. The definition of “occupier” will change. This is so that, where operators exclusively occupy, the landowner or whoever is in control of the use of that land, can grant new code rights.
   
   
8. There will be no right to modification of terms of an existing code agreement.
   
   
9. Paragraph 17 (the automatic right to upgrade and share) will remain unaltered.
   
   
10. Sharing will be made a para 3 code right, but of limited impact, being described as a “bare” right.
    
    
11. Restricted rights to upgrade and share apparatus currently excluded from para 17 should be introduced in certain circumstances but only where there is no material impact on the landowner.
    
    
12. Apparatus installed underneath the land (fibre) can be retrospectively shared and upgraded whether or not a current code agreement is in place.
    
    
13. The FTT is to hear Landlord and Tenant 1954 Act (“the Act”) disputes and changes will be made to the Act.
    
    
14. Expired agreements, where the Act or Part 5 of the code do not apply, will be renewable under Part 4 of the code. (This may potentially include implied periodic tenancies).
    
    
15. Both sides will be able to apply for interim rights (i.e., interim rent / rights.).

Of course, the devil is always in the detail.

There is much to be positive about, yet the proposals in respect of sharing (we think in particular) need further explanation and expansion by government. Noting some stakeholders will be concerned with government’s comments (at paragraph 4.20), that:

The sharing right we are introducing in paragraph 3 of the Code is therefore a ‘bare’ right to share… Any additional terms that may be needed to give effect to this right - for example, the circumstances in which another operator will be permitted to access the land - will be a matter for the parties to negotiate through additional terms or to ask the courts to impose. In this context, we note that there are already numerous agreements in place between independent infrastructure providers and landowners, which work effectively to permit apparatus sharing on a wide scale.

Government has also reminded all stakeholders that:

“The purpose of the Code is to provide a regulatory framework that supports and encourages the efficient and cost-effective installation and maintenance of robust digital communications networks. At the same time, the Code aims to ensure that an appropriate balance is achieved between the public interest in having these networks and the private rights of individual landowners and occupiers.”

How this delicate balancing exercise translates to law remains to be seen.

Watch this space!