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Telecoms Code... two years in

The new Electronic Communications Code (the Code) was already showing its teeth when we commented on the new “human right to mobile telephony” this time last year but developments in 2019 have seen the Code really starting to bite coupled with the continuing political drive to ensure wider and faster broadband access. The Code is clearly here to stay, so what are the key developments in 2019 that landowners need to know?  

A rash of cases on the Code

It has been an extremely busy year for the courts with the Upper Tribunal hearing no less than eight cases brought by operators against landowners under the new Code and the first decision by the Court of Appeal. Almost without question, the cases have been held in favour of operators and the general trajectory is that the balance of power continues to swing in favour of Code rights for operators over landowners’ property rights.

Some of the key issues arising from these cases are:

  • Code rights can only be conferred by or imposed on an occupier of the land (who need not have any proprietary interest in or own the land) so if a landowner’s land is already occupied by an operator then only that operator is the person who can agree to grant Code rights;
  • The presence of chattels (whether telecoms apparatus or otherwise) on or over land does not, on ordinary principles, prevent the grant of Code rights over that land;
  • A telecoms operator is not required to pay relocation costs where its pre-existing apparatus on a proposed (rather than an existing) public footway impeded a neighbouring development;
  • Orders for interim Code rights can be made conditional upon, e.g. obtaining planning permission;
  • An operator in occupation under a lease protected by the Landlord and Tenant Act 1954 and acquired before the new Code came into force (28 December 2017), cannot avail itself of the far more favourable rights under Part 5 of the Code to obtain a new tenancy; 
  • A landowner cannot use the Code’s procedure to oppose a claim for Code rights by arguing an intention to redevelop unless that intention is genuine (following the Franses test applied under the 1954 Act legislation).

Proposed legislative changes

Two further legislative changes have been proposed this year neither of which will be music to the ears of landowners. The first responds to last year’s consultation on enabling tenants’ access to gigabit-capable broadband and has taken the form of a draft bill giving operators the ability to apply to court via a quicker and cheaper route to gain access to apartment blocks to install broadband connections where landowners have failed repeatedly to respond to requests for Code rights. Assuming the Bill passes through Parliament (once it is reconstituted) this would result in operators being granted interim Code rights for up to 18 months for these purposes. The second change was a Consultation published in August proposing to increase the permitted development rights that operators currently enjoy under the Code and the General Permitted Development Order to support deployment of 5G networks and extend mobile coverage. In particular, the proposals would increase the permitted height of new masts as well as allowing operators to expand the width of existing ground-based masts to support new 5G equipment without having to obtain a new planning permission.  

What does the future hold?

The rationale behind the introduction of the Code back in 2017 was to facilitate increased connectivity across the United Kingdom by governing the relationship between landowners and operators, reducing the costs of and barriers to installing communications equipment on private land and opening the way for faster and more reliable broadband. Doubtless there will be further cases under the Code in the coming months and all parties need to keep on top of developments to ensure that agreements entered into strike the right balance.

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