Despite the broad spectrum of opposed views, the forthcoming new Electronic Communications Code favours operators
The headline topics for the Queen’s Speech 2016 which will interest property practitioners include combatting tax evasion, the privatisation of the Land Registry, a new framework for compulsory purchase and compensation to make for faster acquisitions, and legislation to give effect to the Law Commission recommendations on easements.
But buried in the non-headline grabbing Digital Economy Bill is something that many of us have been anticipating for some time: the reform of the wretched Electronic Communications Code. The aim is to rebalance and clarify the conflicts over land use that have raged since the introduction of the code in 1984 (an age when the internet and e-mails were moonshine).
Such reform had been on the cards since the report by the Law Commission in 2013, which suggested a wholesale revision of the code provisions designed to improve procedures and the clarity of the drafting. The coalition government had proposed measures to reform the code during the passage of the Infrastructure Bill in 2014-15. However, following representations from stakeholders on “specific technical issues related to its practical application” (read industry lobbying), the government withdrew the measures in January 2015, resorting instead to a consultation exercise that closed on 30 April 2015.
Finally, on 17 May this year, the Department of Culture, Media and Sport published its proposals for the new code. The foreword by the minister of state for culture and the digital economy draws attention to a number of aspects of the new code that show that the balance between landowners and communications providers will shift firmly in favour of the latter, in a number of respects.
Ringing the changes
First, there will be a major change to the rights that communications providers have to access land by moving to a “no scheme” basis for valuation, similar to the system used for utilities.
Second, communications providers will have new rights to upgrade and share their equipment, which will allow future technologies to be rolled out quickly, removing the source of conflict that currently exists when two providers seek to double up on one site without paying extra rent. Under the new code, communications providers cannot be charged extra for changes where there is minimal adverse visual impact or burden on site providers.
Thirdly, the new code will also enshrine reassignment of code rights. Accordingly, as infrastructure assets are sold and acquired by communications providers, under infrastructure sharing arrangements for example, there will be no option for landlords to negotiate new terms for existing contracts.
Fourthly, there will be also be a policy to prevent “contracting out” of the code. This will ensure that the code underpins commercial negotiations at all times.
Termination hang-ups
Many respondents to the consultation exercise criticised the termination procedures in the current code, which involve consideration of (and usually conflict concerning) the contract between landowner and communications provider on the one hand, and between the code and Part II of the Landlord and Tenant Act 1954, on the other. The hope was expressed that the new code would clarify and resolve this important area, which spawns immense difficulties in practice (think redevelopment of a tower block surmounted by communications aerials, bedevilled by problems concerning the relocation of the equipment). Regrettably, the new code does not seek to redress existing problems, and the government’s paper is silent on how the problem is to be dealt with in the future.
It’s good to talk
The new code is unambiguously aimed at facilitating the communications providers, in every way possible. Ransom valuations will be eliminated; sharing will be enabled without further charge; access to sites will be ensured. The concerns expressed by landowners in their replies to the consultation – that new rights to share and upgrade, over which they would have no control, would be granted to communications providers without payment – have been dismissed. The sop to landowners is that new equipment should not have an “adverse visual impact” or impose an “additional burden”.
The disputes that the old code generated over the course of more than 30 years of operation (most of which never found their way to the courts, mainly because the providers wished to avoid setting precedents) will largely become a thing of the past.
Where disputes cannot be avoided, they will be determined in specialist tribunals, rather than as hitherto in the county courts.
All lines are busy
These “bold and ambitious” reforms, along with other changes in the new code, are intended to make it easier and more cost effective for communications providers to deploy and maintain the UK’s digital infrastructure. The uneasy stand-offs between landowners and providers in the past, whereby landowners were able to frustrate providers despite the background of a code broadly favourable to providers, but vague and uncertain in its terms, will become a thing of the past. Well, in due course, since the new code is intended not to apply to existing contracts.
Communications providers should be delighted by the government’s proposals. Landowners will not, as the Financial Times headline “Landowners criticise mobile mast reforms” confirms. In the eyes of landowners, the new proposals will allow mobile groups to “ride roughshod” over their rights. As against that, the communications providers have long felt that they have been held to ransom by landowners controlling the best sites. Round one goes to the communications providers.
Although the proposals are intended to be allotted a degree of legislative priority in the new Brexit or Bremain world, the process of attempting to ensure that the new code will be better drafted than the old will take time. We should not hold our breaths waiting for the present impasses between landowners and communications providers to be resolved.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
