A new statutory code for electronic communications came into force on 28 December 2017 which strengthen the rights of network operators to install and maintain electronic communications apparatus on private land and which restrict the ability of owners and occupiers to object. Howard Yarnold, commercial property partner with Humphries Kirk in Dorchester explains the key provisions.
‘The government is committed to ensuring that everyone in society has access to the latest technological advances, including super-fast broadband. To deliver on this commitment it has introduced a new statutory code which, among other things, supports the installation of electronic communications apparatus, reduces the amount of rent operators have to pay to do this, extends the period of notice that has to be given requiring apparatus to be removed, and excludes the right of occupiers to seek additional payments where apparatus is updated, shared or sold on. This is something that all private occupiers and landowners should be concerned about’, says Howard Yarnold.
Why the change?
The new rules governing electronic communications, contained in the Electronic Communications Code set out in Schedule 3A of the Communications Act 2003, replace an earlier set of statutory provisions which were universally accepted as no longer fit for purpose because of their failure to recognise and deal with the way technology has evolved over the past 30 years and the confusing way in which they were drafted.
Are existing agreements affected?
The provisions of the new code will only apply to agreements entered on or after 28 December 2017, and transitional provisions mean that in many cases a modified version of the old code will apply to existing agreements.
If you have an existing agreement, you should not agree to enter a new arrangement without first taking legal advice.
Voluntary or mandatory?
There will still need to be an agreement between the network provider and occupier to permit the installation of electronic communications apparatus. However, where a network operator believes that it is in the public interest that an installation should take place, but the occupier refuses, it will be possible for the court to impose an agreement provided the following conditions are met:
Other than the right to ask for a court-imposed agreement, further key provisions of note include:
Termination provisions in more detail
The termination provisions have raised a lot of eyebrows and are of significant concern to occupiers and landowners who are worried about their ability to regain control of land if they need to. They therefore warrant further consideration.
To get apparatus removed under the new code, the occupier must first make sure the agreement has ended. The termination process requires at least 18 months’ notice, which must be given by the person who entered into the agreement or by a person to whom they have transferred their interest in the land. If no notice is served, the agreement will continue, even if the contractual term has finished.
If the occupier serves notice to end the agreement, this can either be accepted by the network operator or met with a counter-notice indicating an intention to object and apply to the court for an order allowing the agreement to continue. It will then be up to the court to decide whether this should be granted.
So, what happens if the land is tenanted or occupied under a licence and the landowner wants their property back? This is a difficult question to answer because agreements entered with a tenant or licensee will not bind a landowner unless they have agreed to be bound. However, this does not mean that a landowner can simply ignore the agreement and somehow compel removal of the apparatus.
Unless the landowner can prove that the apparatus is no longer in use as part of an operator’s network, they can only serve notice requiring removal when there are no continuing rights in respect of the apparatus subsisting under the terms of the code and they are satisfied that the agreement has been terminated.
There is an exception if the occupier has granted rights under the code unlawfully, for example where the occupier’s lease or licence prohibits this. Prohibitions like this are increasingly common, to protect landowners’ rights to get vacant possession of their land but, as with termination, if the operator objects to removing their apparatus they can apply to court.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.