Electronic Communications Code latest


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The Electronic Communications Code (Code) was first enacted in 1984 to regulate the provision of landline telephones. Since then technology has advanced beyond recognition and the Code is no longer fit for purpose.

After sustained criticism of the workings of the Code, in September 2011 the Government asked the Law Commission to carry out a review of the Code and recommend reforms. The Law Commission undertook consultations in 2012 with landowners, operators, lawyers, valuers and others with an interest in the operation of the Code, publishing its report and recommendations in February 2013.

Almost two years later the Department for Culture, Media & Sport produced a draft bill for a new Code which it sought to be enacted by introducing it as a late amendment to the Infrastructure Bill in January this year. This was quickly withdrawn following representations from stakeholders, including the British Property Federation, to allow a consultation on the draft bill to be carried out.

A consultation paper was issued on 26 February 2015 and the consultation will close on 30 April 2015. The consultation sets out specific questions in six areas:

  • the definition of land and ownership of property;
  • how consideration is to be determined;
  • upgrading and sharing apparatus;
  • contracting out of the revised Code;
  • the role of the Land Registry; and
  • transitional arrangements, savings and retrospectivity.

The consultation document is some 28 pages long and has annexed to it a draft bill together with draft explanatory notes and an impact assessment. The draft bill is the same as that submitted as an amendment under the Infrastructure Bill.

The ministerial foreword to the consultation paper states that “my aim is to reform the current Electronic Communications Code in ways that will promote network connectivity, expand coverage and take into account the legitimate interests of all parties. Beyond this, through enabling the rollout of infrastructure, Code reform will provide more consumers across the country with a range of high-quality digital services”. With that in mind it is not surprising that the Code appears to be biased in favour of the operators.

Some of the main provisions are that:

  • operators will be allowed to assign code agreements or share rights under the agreement;
  • any agreement which seeks to prevent or limit an operator’s right to assign or make such an assignment subject to conditions (including requiring the payment of money) will be void to that extent, save for the imposition of an AGA;
  • there is no requirement to notify the landlord of an assignment;
  • consideration under the Code is to be at market value; however, assignment and sharing rights are disregarded and no ransom value will be available;
  • compensation payable under the Code for the imposition of an agreement by the court will be on the same basis as for assessing compensation for the compulsory purchase of any interest in land;
  • ending the code agreement can only be achieved on certain grounds such as redevelopment, substantial breaches of contract or persistent late paying of rent;
  • superior interests in the land and property that have not been agreed in writing to be bound by the Code will not be bound; and
  • some code agreements will be excluded from the protection of part II of the Landlord and Tenant Act 1954. These are where the agreement is mainly for the imposition of code powers, otherwise they will be covered by the 1954 Act and the 1954 Act rights extended.

The consultation is the last chance for landowners and developers to make clear their views and any objections to the proposed new Code; otherwise it is highly likely that the Code will be enacted in the form of the draft bill.

In its current form, the Code will have a significant impact on landowners. The increase of operators’ powers to allow them to have access to the site, assign the lease, upgrade and install additional equipment without the landlord having any control over this, or being able to obtain increased rent or compensation, coupled with an expected decrease of income to landlords of some £30 million, means that telecoms may no longer be an attractive proposition for land owners and may result in advice being given to landowners by their professional advisers not to allow an operator onto a site.

We would encourage you to respond to the consultation. For a copy of the consultation go to: www.gov.uk/government/consultations/consultation-on-reforming-the-electronic-communications-code

Thekla Fellas, Partner, Fladgate LLP (tfellas@fladgate.com)

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