Proliferation of applications for Code powers

Published 25 noviembre 2019

The Code

Nearly two years ago, on 28 December 2017, the new Electronic Communications Code (“the Code”), set out in Schedule 3A to the Communications Act 2003, came into force, bringing with it reforms designed to facilitate the deployment and maintenance of digital communications infrastructure.

With that goal in mind, the Code gifts an increased range of rights, powers and benefits to those successful in their bid for Code powers, including to:

• Employ a ‘no scheme’ valuation principle, meaning the proposed use as telecommunications must be discounted when determining the consideration payable;
• Carry out all those activities listed under paragraph 3 of the Code;
• Construct and maintain communications networks and infrastructure on public highways without need for a street works licence;
• Construct certain infrastructure classified as ‘permitted developments’ without need to apply for planning permission; and, crucially,
• Apply to the Upper Tribunal (Lands Chamber) (“the Tribunal”) to impose a Code agreement upon an owner and/or occupier of land where no consensual agreement can be reached, providing that they be bound by/confer rights under the Code

Only a Code ‘operator’ may effect the Code rights. Under paragraph 2 of the Code, an ‘operator’ falls within the statutory definition if it is in receipt of a direction from Ofcom under s106 of the Communications Act 2003.

The Numbers

Since its inception, the number of applications to Ofcom for a direction applying Code powers has remained, steadfastly, no higher than 10 per year.

In 2019 we have seen 30 such applications already, with 18 of those opening for consultation since August.  To put that into further perspective, the total number of companies on Ofcom’s register of persons with Code powers¹  currently sits at just 161 (and that includes some of those already granted this year).

Why the sudden proliferation?

The Timing

Progress towards Government’s stated goal, necessarily perhaps, has not been swift. At the end of October 2018, however, we finally saw the first substantive decision under the Code² . That decision fell in favour of the operator, on whose behalf DAC Beachcroft acted, providing confirmation that it is a Code right available to Code operators to carry out preliminary surveys and inspections to assess the suitability of a site for the installation of electronic communications apparatus (known in the industry as an “MSV”).

Although (at the time of writing) that decision is currently pending the outcome of an appeal, it, and the several decisions which have followed, seemingly demonstrate an intention of pragmatism from the Tribunal towards Government’s aim.

It is perhaps merely a coincidence that the influx of applications for Code powers began shortly after this first of the substantive decisions. Perhaps, though, it is an indication of increasing confidence from operators (and would-be operators) in the ability of the Code to support and facilitate the goal of enhanced nationwide connectivity.

The Goal

It is not just the implementation of the Code or the decisions handed down under its purview which point to an increased focus and commitment from Government level down. With further initiatives such as the Shared Rural Network, Rural Connected Communities, and proposals to overhaul planning rules and open up airwaves all recently being announced, it is clear that there is a push and expectation on both Code operators and the landowner community to play their part in helping Government to achieve their ambitions, and to drag the UK up  in the connectivity league table, where it has underperformed for what many would say has been far too long.

If the Code is successful in facilitating that improvement, as is its aim, then the benefits of having Code powers seems clear and the increased frequency in applications might be expected to continue for the foreseeable future.

DAC Beachcroft has highly specialised and proven expertise in telecommunications law, acting on behalf of operators in many recent high profile cases. We also have a wealth of knowledge across all other areas of real estate dispute resolution.

For further information, please visit the Real Estate Litigation section of our website.

¹https://www.ofcom.org.uk/phones-telecoms-and-internet/information-for-industry/policy/electronic-comm-code/register-of-persons-with-powers-under-the-electronic-communications-code
²Cornerstone Telecommunications Infrastructure Limited -v- The University of London [2018] UKUT 0356 (LC)