Housebuilder Tip of the Month: Telecommunications and Proposed Reforms

Published 14 junio 2022

The Electronic Communications Code (“the Code”) is set out in Schedule 3A of the Communications Act 2003 and is a set of statutory rights conferred on operators to assist in the installation and maintenance of their electronic communications networks. In most cases, it also governs the method and terms by which land owners or other qualifying parties may seek the termination of Code agreements and/or the removal of electronic communications apparatus. 

It is important to note that the Code confers statutory rights on operators of networks and also on providers of systems of infrastructure to install and maintain apparatus: on, under and over land. This means that all types of apparatus (such as ducts, lines, poles and masts) may attract and benefit from the rights and protections conferred by the Code. The presence of any telecommunications apparatus may not always be obvious and doesn’t necessarily need to be registered at the land registry.

It is also worth noting that further reforms to the Code and to the Landlord and Tenant Act 1954 (“the ’54 Act”) are due this summer with amendments introduced by The Product Security and Telecommunications Infrastructure Bill. Those reforms will likely further improve the position of operators, and will include (amongst others):

• the right for operators to upgrade or alter fixed line apparatus notwithstanding the terms of any prior written agreement;
• the ability for operators to seek new Code rights (using paragraph 20 of the Code) in a broader set of circumstances; and
• amendments to the way rent (for leases concerning telecommunications) will be assessed under the ’54 Act, so that the assessment methodology is identical to that contained in paragraph 24 of the Code, meaning no open market assessments and the likely reduction of rent in “code” ’54 Act renewals by as much as, if not more than, half.

Where the intention is to develop or redevelop land or buildings occupied by Code operators professional advice should be sought as early as possible; failure to do so could mean significant delays (in some cases of up to two years). In addition, early without prejudice and agent dialogue is often essential in reaching a fair and sensible commercial compromise and is highly recommended.