Note: this bulletin was published on 26 January 2015 and the Infrastructure Bill subsequently received Royal Assent on 12 February 2015, with no mention of the Electronic Communications Code. The Government has stated that it still intends to reform the Code during the first session of the 2015-2020 Parliament, following a further consultation which ran from 26 February to 30 April 2015. Contact Herbert Smith Freehills for further information.
On 13 January 2014 the Government introduced a revised Electronic Communications Code by means of a 59 page amendment to the Infrastructure Bill, which is currently progressing through Parliament (as at 26 January 2015). The code regulates the legal relationships between landowners and telecoms operators when telecoms apparatus is installed on land. The existing code has been criticised for many years as being incoherent and out of date. It was famously described by Lewison J in 2010 as "not one of parliament's better drafting efforts….. one of the least coherent and thought-through pieces of legislation on the statute book". The revised code was based on the February 2013 recommendations of the Law Commission. So, the move to introduce a revised code was initially welcomed. However the revised Code was withdrawn on 22 January 2015 in a surprise move by the Secretary of State.
Prior to the Infrastructure Bill, the Department for Culture Media and Sport (DCMS) ministers had decided to postpone legislation to reform the code until after the election. This would allow further time for consultation with stakeholders on various issues. However, in light of the Government's broader commitments to expand mobile coverage, Secretary of State Patrick McLoughlin decided not to postpone any longer. Consequently, very late in the day, new legislation to reform the existing code was introduced into the Infrastructure Bill.
A number of organisations and MPs voiced their concerns over this arrangement. By then, the Infrastructure Bill had completed its House of Lords stages and was at Committee Stage in the House of Commons. This left very little time for debate or parliamentary scrutiny of the revised code.
On closer examination, the revised code was found to contain a few significant issues from the perspective of property owners. One issue was an amendment to the market valuation basis for wayleaves, which would substantially reduce the rent received by landlords. Another concern for land owners was a new right for telecoms operators to sub-let sites.
As a result of these and other concerns, it was suggested that the revised code could, in future, make landowners less likely to enter voluntary agreements with telecoms operators. Under the existing code, the vast majority of installations, (thought to number 2000-3000 a year) are done in agreement with the landowner. The point was made that fewer voluntary agreements could ultimately result in the delivery of less new infrastructure, not more. The British Property Federation worked with parliamentarians to table amendments to address these concerns.
Then, in a surprising move, on 22 January 2015, the Secretary of State withdrew the amendment. So it appears that the revised code will not now be introduced as part of the Infrastructure Bill. It is to be hoped that a full consultation on the revised code will be initiated shortly. Landowners should then take the opportunity to work with DCMS to produce a revised code that will not only meet future consumer demand for mobile/broadband services but that will also be welcomed by operators and landowners alike.
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.