I’m old enough to remember the particularly sketchy signal you’d often have with your Nokia 5110 mobile phone, especially if you were somewhere particularly rural, and the slightly slow and painful GPRS internet experience via which I could sometimes get train times. Now, the gaps in signal are limited and electronic telecommunications plays a very central role in our daily lives, enabling everything from phone calls and texts to internet access and streaming.
Behind this connectivity in the UK is a legal framework that governs the installation and maintenance of the necessary infrastructure, ensuring networks are reliable, secure, and accessible. As part of a new series of articles, I recently posed some questions to Victoria Wells, associate in our Property Litigation team, about this framework with a view to giving you an overview of the Electronic Communications Code.
AB: This is such a vast and complex area of law that I know we can’t cover everything in one interview, but I’d like to cover the basics. Starting off with an easy one and perhaps the most important – what is it?
VW: In short, The Electronic Communications Code governs the rights and powers of telecommunications operators to install, maintain, upgrade, and replace electronic communications equipment on various types of land. This equipment can include anything from mobile phone masts to fibre broadband infrastructure. The land in question can range from a field in the countryside to a rooftop in a central city location.
Interestingly, the initial Code dates back to 1984 and was designed to cover telephony but naturally, it needed to be updated to cover expanding technologies. We have the “new” Code – which has been around since 2017 (and has itself been subject to amendment since then!) but despite approaching it’s seventh birthday as we speak, its impact is not widely known or understood by landowners.
Telecommunications is obviously an area that is becoming more and more prevalent in the UK, particularly in light of the push from operators to roll out a 5G network, and there have been recent legislative changes empowering operators to obtain new rights over land for masts, fibre broadband and other apparatus.
The purpose of the Code was to facilitate the roll out of communications equipment more easily and cheaply so with this as its guiding principle, the Code is weighted heavily in favour of operators – albeit with a requirement to ensure the least possible loss and damage is caused – and it is therefore of paramount importance that landowners are aware of the Code, and receive the appropriate advice in relation to it.
AB: You mention ‘operators’ – is there a specific criterion that needs to be met for a company to be an operator?
VW: Yes, an operator is defined within the Code, so it’s not just anyone who fancies placing equipment of some sort on land. Rather helpfully, Ofcom keep a freely accessible register of companies that have been granted powers under the Code.
AB: Helpful indeed! What aspects of the new Code make it less landowner-friendly?
VW: There are various aspects but the ones which spring to mind are:
- The way the rent is assessed is generally felt to result in lower levels than previously;
- “Lift and shift” arrangements, requiring equipment to be moved from one place to another to facilitate a landowner’s redevelopment need to be negotiated and expressly recorded in an agreement as there is no longer a statutory right to require relocation;
- The removal of apparatus will take longer given the set process you have to follow; and
- Operators are able to fairly freely share sights with others or upgrade equipment without landowner consent subject to there being no loss/damage, and no adverse effect on the enjoyment or appearance of the land.
AB: So, what do landowners need to be aware of, and how can we help?
VW: The Code grants wide powers to operators, which can often leave landowners feeling vulnerable. Where land is identified as being of potential use for telecommunications (where the operator is not already in situ) then the operator can serve a notice on the landowner for either interim Code rights or permanent Code rights. In either case, it is very important that, upon receipt of such a notice, the landowner seeks advice from a solicitor or surveyor.
AB: What are the operators seeking when serving these different notices?
As mentioned, the notices can relate to interim or permanent rights, which I can summarise as follows:
- Interim Code rights are often sought where an operator wishes to assess the suitability of the land. If access is granted without an early access agreement in place (officially known as a “Multi Skilled Visit agreement”), an operator may inadvertently be granted permanent Code rights (on likely unfavourable terms). It is also important for the agreements to set out the extent of the survey – for example, is it to be invasive or non-invasive?
- Permanent Code rights are sought either as a standalone claim or following on from a claim for temporary rights. A notice for permanent rights is the most common type and there are very limited grounds on which a landowner can object to an operator obtaining permanent Code rights. This is where we can assist – for example, we can assess the landowner’s position to see whether it is able to object to the notice or failing that, negotiate terms with the operator seeking the best possible outcome for the client. If an agreement cannot be reached between the parties, once the notice has expired, the operator can apply to the Tribunal to impose an agreement on the landowner.
AB: Can you clarify how temporary rights differ from the interim Code rights, as we’d often use those words interchangeably, but they perhaps have a specific and distinct meaning here?
VW: Yes, unlike interim rights which precede an operator going on to site, temporary Code rights are often sought where an operator already has telecommunications equipment installed at a property but no longer has the legal right to be there. An application for temporary Code rights will be, as the name suggests, only for a specified – temporary – period of time, and an application for permanent Code rights must be made by the operator (if not readily agreed between the parties).
AB: Is there anything landowners should be aware of where there is already an agreement in place?
VW: Absolutely, and this is where it gets interesting – some older telecommunications are governed under the Landlord and Tenant Act 1954.
AB: And that’s the Act which gives security of tenure to business tenants, i.e. rights to renew subject to certain grounds.
VW: Yes. If this is the case, an operator must utilise the procedure under the 1954 Act for the renewal of a business tenancy.
Given that the Code, and in particular the cases arising from it, are relatively new there is limited precedent from higher courts. However, we had an appeal decision recently from the Upper Tribunal (Gravesham Borough Council v On Tower UK Limited [2024] UKUT 151(LC)) where there was already a subsisting agreement in respect of a mast in place which was to be renewed under the 1954 Act (rather than the Code). The operator issued a 1954 Act claim but this was not served in time resulting in the claim lapsing and the operator losing its security. As a result, the operator thought they may be able to salvage things under the Code and so served a Code notice seeking an order imposing a new lease of the site instead.
Disagreeing with the Judge at first instance, it was ordered that if the operator has failed to renew its tenancy under the 1954 Act, it should not be entitled to a further bite of the cherry and be entitled to “try again” under the Code (even though the Code did not expressly prevent it).
AB: Is there a way “around” the Code?
VW: You can’t “escape” the Code or contract out of it but what I would say, is that it’s often more beneficial all round for parties to negotiate an express written agreement between them, rather than having things escalate and result in the court imposing an agreement – with the associated expense. Often the operator will approach a landowner informally, ahead of using the Code process, and this is where we can help, at that early stage, to negotiate and reach an agreement which works for both parties.
For help and guidance of what you need to be aware of as a landowner, please get in tough with our Real Estate team who will be happy to help.