The new Electronic Communications Code – A year on
The new Electronic Communications Code – which governs the relationship between property owners and those who run communications networks through masts, cables etc. - will soon have been in force for a year. Unlike the old Code, we have already seen operators testing its reaches and the implications for property owners are starting to become clear.
The market for new sites appears to have “stagnated” as a result of land owners’ dislike of the changes introduced by the new Code and the aggressive approach taken by some operators. This is causing problems for those who wish to redevelop their buildings as they now face even greater delays in removing communications apparatus because of the lack of alternative sites available for its relocation.
There is, of course, a real difficulty for our economy and society here in trying to achieve the right balance between the increasing demands for better connectivity (including from many tenants) with the need for flexibility in the use of buildings and their redevelopment. Property owners are also concerned about operators proposing new rents at extremely low levels, using the new “no scheme” valuation criteria.
Operators appear to be willing to pursue these rents – as well as their Code rights – much more assertively than they did under the old Code. This partly reflects the jurisdiction given to the Upper Tribunal for many Code matters and its obligation to determine certain Code applications within 6 months. It is clear from the Tribunal’s early decisions in applying the new Code that it recognises the wind of change brought in by Parliament and is willing to blow it forcefully through property interests.
In the recent case of EE Limited & Anr v The Mayor and Burgesses of the London Borough of Islington, the Tribunal noted that property owners:
deprived of the right to do as they wish with their own property and made to accept a price that is lower than they would like…can be said to have sustained an infringement of their property rights which is prejudicial.”
Nonetheless, it accepted the need to impose agreements in this way because of the public interest in having high quality communications services available.
In the EE case, concern for the public interest in avoiding a break in mobile coverage allowed operators to secure interim rights to relocate their apparatus to a new site despite fairly limited evidence in support of their application. The Tribunal was satisfied that money would be adequate compensation for any prejudice caused to the landlord by the imposition of the order and rejected the suggestion that the works would cause prejudicial disruption to the occupiers of the flats within the building. It also made it clear that an operator only needs to produce modest proof that it has satisfied the tests set by the Code in such applications, which may be determined even without a hearing.
In addition to offering a clear demonstration of the force of the new Code, the case is a lesson to landowners about the importance of taking a careful approach to negotiations. For the London Borough of Islington, its open willingness in prior negotiations to accept the principle of having communications apparatus on its land – with the only dispute being the question of the relevant rent - encouraged the Tribunal to approve the operators’ application for interim rights, on the basis that it only remained for suitable financial terms to be determined.
The year ahead will probably see more Tribunal decisions clarifying the intended operation of the new Code. Of perhaps even more concern to property owners will be the government’s recent announcement of a consultation on possible amendments to the new Code which would allow operators to force access onto property via a magistrates’ court-issued warrant of entry, using powers similar to those that already exist in relation to other utilities. (The closing date for submissions in response to the consultation is 21 December 2018.)
Operators have already had a positive outcome on the issue of access, after the Upper Tribunal found in Cornerstone Telecommunications Infrastructure Ltd v University of London that a right of access for surveying purposes is a 'Code right' under the new Code. No doubt, operators will be keen in 2019 to build on these recent Tribunal victories and perhaps use examples of the difficulties in securing new sites to try to obtain further enhanced rights from the government.
What are Code rights?
The “Code rights” that may be granted or contained in a court-imposed Code agreement include rights for an operator, where apparatus is used in providing an electronic communications network, to:
install apparatus on land;
carry out works for or in connection with the installation of apparatus on land; and
enter land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus on the land.
This article was written by Emma Humphreys and Clare Fleming. For more information please contact Emma on email@example.com or +44 (0)20 7203 5326 or Clare on firstname.lastname@example.org or +44 (0)20 7203 5043.
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