Telecoms Support for Property

The Electronic Communications Code (sometimes called the “Code” or the “Telecoms Code”) is a piece of legislation as set out in Schedule 3a to the Communications Act 2003. Historically it was governed by the 1984 Electronic Communications Code. However, The Code underwent changes in 2017 by virtue of the Digital Economy Act 2017, which created what is known as the 2017 Code. 

The Government describes the Code as a framework that underpins agreements between electronic communication network providers (these are known as operators under the Code) and landowners regarding the deployment of electronic infrastructure under, on or over land. 

For the purpose of the Code, a “landowner” is the person, company, partnership etc, that has the legal right to the land where the operator wishes to place or has placed its equipment.

This will depend on when the agreement was entered into. 

Where a Code agreement was made prior to 28 December 2017, the previous 1984 code will apply but will be retrospectively governed by the 2017 Code agreement with some modifications. 

Landowners also need to be mindful that any historical lease prior to the 2017 Code may also be afforded protection under the Landlord and Tenant Act 1954 (unless the statute has been contracted out of). 

For any agreements that have been entered into after 28 December 2017, Part 5 of the Code will apply. 

There have been a number of changes. Most are widely considered to be operator-friendly. 

The main ones are likely to be considered a disadvantage to landowners in that, under the new agreement, there has been a change in the valuation that calculates rent. The rent will be calculated on a ‘new scheme’ arrangement and is designed to reflect the value of the land rather than the demand for the operator’s services. 

The Code also grants operators the ability to share equipment. Therefore, it may be that a landowner finds itself having a single agreement with an operator, but that operator then shares its equipment with an additional operator. 

An operator is also able to assign any rights that it has under a lease agreement to another operator. This is despite any terms to the contrary that may be contained in the agreement. 

The landowners benefit because the Landlord and Tenancy Act 1954 Act will no longer apply to Code agreements. 

Code rights give operators a lot more favourable rights than they used to. The changes made in 2017 were to increase the operator's ability in order to align with the Government’s plan to increase telecommunication infrastructure. 

Some of the rights that operators have are: 

• Carry out works to the land in order to assist their rights
• Connecting to a power supply at the premises for the equipment
• In some cases, influence any access to land
• Install, maintain, adjust, alter, repair and upgrade apparatus

The Code also affords statutory protection, which means that it shall continue until it is determined in accordance with the Code. 

Other than having historical rights through continued occupation, there are two ways in which an operator can acquire Code rights: 

1. By the parties agreeing to them. This should involve putting a formal lease in place between the parties
2. By the court ordering an agreement. This would require the operator to apply to the court seeking code rights, which would result in the court imposing an agreement. If the court thinks that the public benefit of accessing telecom services outweighs the prejudice to the landowner, then the court will likely impose an agreement. In these circumstances, the court usually orders that the landowner is to be financially compensated

Yes, it is possible to terminate Code rights. In order to terminate a code agreement, a landowner must: 

• Give the prescribed form of notice as provided by Ofcom
• Give 18 months notice
• Specify one of the grounds for termination (such as redevelopment)
• Specify the termination date (which must be no earlier than the date provided for in the agreement or the contractual expiry date)

In some cases, it may be that the landowner needs to take court action in order to seek recovery of their land. 

No – parties cannot contract out of the Code. Even if an agreement specifically states that the Code is to be contracted out of, this will not be valid as a matter of law.

However, there is scope for landowners to argue that for any “new” code agreement, the protection afforded under the Landlord and Tenant Act 1954 will not be granted – although parties should still take to contract out of the 1954 Act through the standard method.