The telecommunications industry is ever changing and continually under review by operators, landowners, land agents and policymakers. One of the recent key changes introduced is the ability to seek interim rent.
The introduction of Section 68 of the Product Security and Telecommunications Infrastructure Act 2022 (PSTIA 2022) amended paragraph 35 of the Code, permitting parties to apply for an order for a temporary change in the rental consideration payable, whilst Code negotiations are ongoing.
The amendment was introduced to address what the government considered a "backdating issue" and displays their support for the rise of the digital economy, which in the coming years will involve the efficient rollout of high capacity 5G networks and increasing infrastructure to support this.
In practice, this should extend greater powers to operators to secure a lease renewal or a new agreement. Before 7 November 2023 (the date on which Section 68 came into force), landowners may have been incentivised to draw out discussions or proceedings, as doing so would delay the date from when they receive the, likely lower, new Code site payment. The introduction of interim rent has removed this incentive. This mechanism is therefore designed to prevent delays and encourage progress in reaching new terms.
The introduction of interim rent also brings the Code one step closer to commercial lease practice under the Landlord and Tenant Act 1954. The 1954 Act permits the new passing rent to be payable from before the court orders a renewal lease. There is however a key distinction in that under the 1954 regime, a court is entitled to order a new rent be payable from the earliest date that could have been included in either party's statutory notice. By contrast, an order for interim rent under paragraph 35 of the Code can only be applied from the date of the application. Given proceedings can take up to 18 months to conclude, the ability to obtain a new rent during this time still represents a significant advantage.
Whilst not applicable north of the border, the provision to seek interim rent under the 1954 Act was considered in the Lands Tribunal for Scotland's most recent and first decision on interim rent: EE Limited and Hutchison 3G UK Limited v Verte Development Limited [2025] LTS 13 ("Verte"). Here, the Tribunal began by making clear that whilst there is an ability for either party to apply for interim rent under the Code, whether an order for interim rent is ultimately granted is at the discretion of the Tribunal - it is not guaranteed! The Tribunal went on to recognise, however that "in most normal cases the court's discretion…ought to be exercised, in that to do so will usually promote justice" (Megarry J at paragraph 432J of English Exporters (London) Limited v Eldonwall Limited). Applying the same kind of logic and in line with the Parliament's intention, so long as the circumstances provide justification, the operator should be entitled to seek an interim rent at a level which now prevails.
Helpfully, the Tribunal also commented each operator is entitled to have their application determined within a reasonable time, without undue delay. In Verte, the site provider was found to have delayed meaningful negotiations, and progress the case inefficiently, so if interim rent was not imposed, the delay would only benefit them. This was a factor in deciding the Tribunal's approach and ultimately led to an order for interim rent being granted.
Overall, the capacity to seek interim rent is and ought to be used as a tool to set precedent of realistic rent-levels and implement modern Code terms.
