FAQS on the Electronic Communications Code

The Code governs the relationship between property owners and Code operators. It applies to electronic communications apparatus such as masts and cables. It provides Code operators with strong protections to ensure continuity of service and gives them more flexible rights in order to increase access for the public to electronic communication services.

The new Code is contained in Schedule 3A to the Communications Act 2003 (introduced by Schedule 1 of the Digital Economy Act 2017) and has been in force since December 2017. The new Code replaces the previous Code set out in Schedule 2 of the Telecommunications Act 1984 (as amended). However, the old Code still applies to certain agreements to some extent.

The provisions of the new Code are not retrospective but there are complex transitional provisions which mean that parts of the new Code will apply to any subsisting agreements (i.e. agreements that were made under the previous Code but were continuing when the new Code came into force).

A Code operator is a person to whom the Code applies. A list of operators can be found at www.ofcom.gov.uk

Paragraph 3 lists a “menu” of Code rights which the operators can choose to seek over land. Examples of Code rights include, the right to:

• install apparatus and carry out connected works;
• enter land to inspect, maintain, adjust, alter, repair, upgrade or operate apparatus;
• connect to a power supply;
• access land to carry out an initial survey to see if the site is suitable for the installation of apparatus (this is not an express right set out in the Code, but was confirmed by the Court of Appeal in the case of CTIL v University of London (2019))

• Under the old Code, the parties could agree provisions for assignment, sharing and upgrading of equipment. Under the new Code:
  • The right to assign cannot be restricted.
  • There is an automatic right for the main operator to share use of/upgrade apparatus where there is:
    • No/“no more than minimal” adverse impact on appearance;
    • No additional burden on the landowner.
• Under the old Code, Code operators could have both the protection of the Landlord and Tenant Act 1954 (“1954 Act”) and the Code. This overlap is removed under the new Code and the transitional provisions.
• Under the new Code there is a renewal/variation process similar to that under the 1954 Act. Paragraph 33 provides that either an operator or a site provider can serve notice to “modify” a Code agreement. On such an application, the Upper Tribunal may make a number of possible orders including providing for the continuation of the code rights, the modification of code rights and/or imposing a new agreement conferring code rights.
• There is also provision for interim Code rights on new sites and temporary rights in respect of existing apparatus (see in more detail below).
• There is no longer any automatic right for landowners to require operators to “lift and shift” apparatus. Under the old Code, it was possible to serve a notice requiring the alteration of apparatus (the definition of “alteration” included removal) in order for the landowner to carry out an improvement (i.e. redevelopment) of land. This automatic right has been removed under the new Code although it should still be available where an operator is in occupation under a subsisting agreement.
• It is not possible to limit or contract out of the Code.
• Applications in respect of new Code agreements are dealt with by the Upper Tribunal (Lands Chamber) as opposed to the County Court, with strict time limits. Cases are generally disposed of within 6 months of the making of the reference/application.

Code rights can be conferred by agreement between an occupier of land and operator or they can be imposed on an occupier by the Upper Tribunal (Lands Chamber). A superior title holder (for example, a freeholder where land is occupied by a leaseholder) will not be bound by a Code right conferred on an operator by their tenant unless they have agreed to be.

Code agreements must be in writing and signed, state the length of term and any notice period for termination. It is important to consider the statutory overlay and any implied rights when entering into an agreement with a Code operator.

Leaving aside interim or temporary Code rights (see below), an operator can serve a notice (known as a Paragraph 20 Notice) on an occupier to seek an agreement for code rights. The notice must specify:

• the Code right or rights required;
• all other terms of the agreement that the operator seeks; and
• that the operator seeks the relevant person’s agreement to those terms.

The notice generally annexes a draft agreement. The notice must also explain the effect of the notice, which provisions of the Code are relevant to the notice and the steps that may be taken by the recipient in respect of the notice.

Generally speaking, a recipient has 28 days from receipt of the notice to respond. If the recipient does not agree to the imposition of Code rights then the operator can apply to the Upper Tribunal (Lands Chamber) for Code rights to be imposed.

The Tribunal can impose the agreement if it considers that:

• any prejudice to the relevant person can be adequately compensated by money; and
• the likely public benefit* in imposing the Code rights outweighs that prejudice. (This is known as the “Paragraph 21 Test”)

The Tribunal is to have regard to public interest in access to a choice of electronic communications services. Prejudice must be “very high indeed” to outweigh public benefit: CTIL v. University of the Arts London (2020).

No order will be made if the landowner has an intention to redevelop. The Tribunal has confirmed that this test is similar to the approach adopted in relation to cases under section 30(1)(f) of the Landlord and Tenant Act 1954.

Paragraph 26 of the Code allows an operator to seek urgent Code rights in relation to a new site pending a longer-term Code agreement.

An operator must:

• serve a notice stating that Code rights are sought on an interim basis; and
• establish that it has a “good arguable case” that the Paragraph 21 Test is met (see above).

This is a summary procedure, dealt with at a short hearing by the Tribunal (if agreement cannot be reached). Such an agreement can only be imposed by Tribunal Order and this does not attract security of tenure as it must come to an end by a specified date or a specified event (such as the grant of planning permission).

Where apparatus is already on land and the agreement covering it has come to an end, an operator may seek a new temporary agreement under paragraph 27 of the Code.

The operator must serve notice and the Tribunal may order temporary Code rights for as long as reasonably necessary until a new Code agreement or removal order is made.

Both temporary and interim rights allow operators to maintain network for an interim period without obtaining security of tenure under the new Code.

Terminating Code agreements (excluding interim and temporary code agreements) now requires at least 18 months’ notice.

A landowner/site provider must also specify a particular grounds or grounds for termination (including intention to redevelop) in the notice to the operator and these must be one of the following:

• Substantial breaches of the operator’s obligations under the agreement;
• Operator’s persistent delays in making payments due under the agreement; or
• The site provider intends to redevelop all or part of the land to which the agreement relates, or any neighbouring land, and could not reasonably do so unless the Code agreement comes to an end.

Once the landowner/site provider serves notice to terminate the agreement, the operator then has 3 months in which to serve a counter-notice. After that (within 3 months of serving the counter-notice), the operator can apply to the Upper Tribunal (Lands Chamber) for a determination as to whether the site provider has satisfied the ground(s) for termination.

Even after an agreement is terminated, the landowner/site provider may have to follow an additional removal process under the Code if the operator does not vacate voluntarily.