Today in our Yule Blog we receive the gift of connectivity. Good telecommunications networks are vital in our personal and professional lives, and can be incorporated into new developments. Landowners that are looking to redevelop can also face delay if an operator is unable to find alternative (often rooftop) sites for their apparatus in urban areas. So, it is often in developers' interests that operators can communicate effectively with the owners of surrounding premises to facilitate relocation.
The Government has concluded that telecoms operators have faced delay expanding/ upgrading their infrastructure and networks on occasions where they have encountered landowners that repeatedly do not respond or where there are restrictive terms in existing Code agreements. The Product Securities and Telecommunications Infrastructure Act 2022 (the "Act") received Royal Assent on 6 December 2022 and it contains a couple of crackers for the operators...
Background
The Electronic Communications Code 2017, an overhaul of the previous Code, gives statutory rights to operators to install their apparatus on or under private land. It also provides automatic rights to share and upgrade apparatus in relation to Code agreements granted after 28 December 2017. However, many operators claimed it did not go far enough and left gaps which the Act seeks to plug.
Where landowners don't respond
On 26 December 2022, regulations made under the Telecommunications Infrastructure (Leasehold Property) Act 2021 will come into force. These allow Code operators to acquire rights against landlords of blocks of flats, where a tenant in that building has made a service request to the operator, but the landlord has repeatedly failed to respond to the operator's formal notices requesting access. That Code right will be limited to 18 months.
However, the Act takes the same principle and enhances the imposed rights up to a maximum of 6 years in relation to unresponsive landowners of undeveloped land (ie land with no buildings on it). The right can only be used where:
- the operator needs to provide a telecoms service to premises;
- to do so, it must install apparatus under or over (but not on) land owned by an unconnected third party; and
- the land is not used as a garden, park or recreational area.
Watch this space though, as there is provision to expand the right by secondary legislation. We expect to see it widened to include unresponsive landowners of office blocks and business parks in due course.
Further detail is to follow in regulations (which will also bring the provisions into force), but the right will not arise unless the operator has served four separate notices on the landowner, at least 14 days apart each time. Nonetheless, landowners should ensure they have robust notice procedures in place so that early legal advice can be sought on receipt of any Code notices.
Enhanced sharing/ upgrading
The Act also includes:
- Enhanced sharing rights for new Code agreements, which go beyond the automatic right to share apparatus (which comes with restrictions). The enhanced sharing is now a designated Code right, for which landowners can require higher payment if the burden on the land goes beyond the automatic rights.
- Limited upgrading and sharing rights for pre-2017 Code agreements where apparatus is installed below ground. This right also applies for apparatus installed before 29 December 2003, even without a subsisting Code agreement in place. The right applies only where the upgrading/ sharing will have no adverse impact on the land and will impose no burden on the landowner (ie no adverse effect on their enjoyment of the land or no loss, damage or expense).
With bells on (or not)
The Act also took the opportunity to reconcile some of the judicial decisions since the new Code came into force. It levels the playing field between Code agreements and renewals under the Landlord and Tenant Act 1954, where operators are obliged to pursue the latter under the transitional provisions.
However, an opportunity was missed to bring goodwill to all … a late amendment to require an independent review of the Code and accompanying legislation within three months was dropped at the final stages. The proposed review would have considered, amongst other things, the balance of rights and responsibilities of landowners and operators. It would also have made recommendations for potential revisions to the Code and potential amendments to valuation of land, a hotly contested issue for landowners who in some cases have seen reductions in rents of 60-90% against pre-2017 levels.
Real Estate Development Yule Blog
Links to the previous posts in our Yule Blog series are below – check back tomorrow for number 5 in our festive countdown.
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Disclaimer
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.