Reforms on the horizon for the Electronic Communications Code
Mobile operators have been criticised for continuing poor coverage, but they argue that the current Code - which gives them rights to put equipment onto land including rooftops - works too slowly. They have also been putting pressure on the government to help them reduce costs, in return for investing substantial sums in improving coverage.
The current Code is disliked by many property owners, who complain about the restrictions they suffer when an operator wants to put equipment onto their land or building. Developers in particular can lose valuable time as it can take around 18-24 months to secure the removal of apparatus due to the complexity of the legislation.
From the information published so far, the key changes are likely to be:
Retrospectivity: Although there will be transitional arrangements, the new Code will not have retrospective effect and therefore should not affect agreements already in place.
Contracting out: Parties will not be permitted to “contract out” of the new Code or exclude any of its provisions.
Test for imposing rights: It seems likely that the government will change the current test for deciding whether to override a property owner’s rights if it will not voluntarily agree to the installation of apparatus. This will probably involve assessing: (i) if the property owner can be compensated for its loss from Code rights being imposed and (ii) whether the loss is outweighed by the public benefit in having access to the relevant services (including a choice of services).
Rents: The government accepts that property owners should receive “fair payment” for the use of their land, but it intends to change the valuation approach so that it is based on compulsory purchase principles. This will limit rents by disregarding the value of the land to the operator.
Upgrading/sharing: The new Code will include automatic rights for operators to upgrade and share apparatus without a landlord’s consent or extra payment in certain circumstances.
Lift & shift: The revised Code is unlikely to include the additional “lift and shift” rights currently given to property owners under paragraph 20.
Dispute resolution: Dispute resolution seems likely to be moved from the county courts to the Lands Chamber of the Upper Tribunal for most issues. There will also be measures to allow early access to sites for operators where the only dispute relates to price.
The existing Electronic Communications Code has caused real practical difficulties for mobile operators and property owners over decades. The government is understandably concerned that the current law is hampering the rollout of technology and limiting the ability of communications services to meet the needs of the digital era.
However, there is an important balance to achieve between mobile operators and property owners and it remains to be seen whether the government will take their feedback on board or whether the replacement Code will simply lead to a new set of issues for argument - not to mention further delays in the rollout of technology and increasing costs for both sides.
This article was written by Emma Humphreys and Clare Fleming.