Most landlords have at least a rudimentary understanding of the key principles behind the Landlord and Tenant Act 1954, but the same cannot be said for the Electronic Communications Code (variously referred to as the ‘Telecoms Code’, the ‘2017 Code’ or simply ‘the Code’). This is despite the fact that its provisions are, so far as landlords are concerned at least, potentially just as onerous if not more so than those under the 1954 Act.
What is the Code and what are Code rights?
As its various names imply, the Code came into effect in 2017 and grants telecommunications operators a variety of rights in relation to installing and thereafter maintaining, upgrading and sharing the use of telecoms apparatus on a third party’s land, to name but a few. These Code rights can only be exercised by operators who appear on the Ofcom register of persons with powers under the Code (which can be checked here) but apply in relation to any apparatus used or potentially capable of being used to provide a telecoms service. Generally though, the apparatus in question is either fibre optic cabling or rooftop or greenfield masts.
The Code was brought in as part of a UK government plan to make it easier and cheaper for operators to install their apparatus and roll out improved telecoms services and network coverage, so its provisions are generally very operator friendly. For the same reason, where the Code has already been the subject of litigation its provisions have also generally been applied by the court in favour of operators. The irony therefore is that while the Code was designed to make the installation of apparatus easier, with good reason landlords are also more wary of and perhaps more reluctant than ever before to become bound by such Code rights.
How can site providers/landlords become bound by Code rights?
A landlord can become bound by Code rights either by granting them consensually to an operator under an agreement (typically a wayleave agreement in the case of fibre optic cabling, or a lease in the case of masts) or by having them imposed upon them by the court (and unlike with the 1954 Act it is not possible to contract out of the provisions of the Code).
In the latter case, an operator must first serve a prescribed form of notice on a landlord requesting Code rights and can only apply to the court to obtain them if the landlord serves a counter-notice within 28 days opposing that request (although the Telecommunications Infrastructure (Leasehold Property) Act 2021 and the Product Security and Telecommunications Infrastructure Act 2022 have both now clarified that in certain circumstances an operator can apply to the court to obtain rights whether or not the landlord serves a counter-notice, so simply ignoring such requests is no longer a viable option). In deciding whether to grant Code rights to an operator, the overriding test that will be applied by the court is whether any loss to the landlord caused by the grant of the rights is both: (i) capable of being compensated financially; and (ii) outweighed by the public benefit to be gained from the operator’s proposal.
It should also be noted that operators can apply to the court either for time limited or permanent Code rights. Time limited rights (otherwise referred to as ‘interim’ or ‘temporary’ rights under the Code) might be relevant for example where an operator wants only temporary access to a rooftop site to first assess whether it would in fact be suitable for a permanent mast. For this reason, some in the industry see Code rights as being almost akin to compulsory purchase powers, because if an operator wants access first to survey a site and then to locate its apparatus on it permanently, it can (subject to the aforementioned test to be applied by the court) be very difficult for landlords to resist this. In relation to site surveys specifically, the case of Cornerstone Telecommunications Infrastructure Limited v Hackney did however clarify that the landlord (rather than the operator) is entitled to have the final say on whether the risk assessment and method statement prepared by the operator for such a survey is adequate before it can go ahead.
The 2017 Code replaced an older code contained in the Telecommunications Infrastructure Act 1984. If a site is subject to a subsisting agreement relating to apparatus entered into before 2017 then a landlord should also be aware that in such a scenario it may already be bound by certain Code rights, but transitional provisions will apply and these will need to be considered carefully.
Which Code rights should site providers/landlords be concerned about?
As mentioned, the Code rights are numerous but there are three areas in particular that could cause potentially significant headaches for landlords:
- The right of operators to upgrade their apparatus, which is generally viewed as a right to add to rather than simply alter existing apparatus. Where rights are being granted by agreement it might be possible for a landlord to negotiate in certain safeguards, but landlords should be aware that in certain circumstances the court has seen fit to grant operators entirely unlimited upgrade rights (see in particular the case of On Tower UK Ltd v JH and FW Green Ltd);
- The right of operators to require a landlord to serve at least 18 months’ notice in order to bring any existing Code rights to an end. This is of course especially important in a development context. Landlords should also be aware that even if Code rights have been properly terminated they may still need to serve further notice on the operator to ensure the apparatus is actually removed by them; and
- The fact the Code does not contain any implied right in favour of a landlord to require lift and shift of existing apparatus. Any such right will therefore need to be expressly negotiated with an operator and can be especially important given the 18 month notice period for termination.
Where a landlord is contemplating granting Code rights to an operator consensually under a negotiated agreement, it is also vitally important to keep in mind that it is not possible to contract out of certain provisions of the Code. This includes the 18 months’ notice period for termination, which will apply regardless of what the negotiated agreement itself says about termination rights.
Conclusion
As will be apparent the Code is complex but it is important for landlords to be aware of its key principles, as well as its potential pitfalls. Should you require any advice relating to the same please feel free to contact a member of the team.
Key Points:
- Landlords should be aware that existing or new agreements relating to telecoms apparatus owned by qualifying operators on their land will be subject to the statutory provisions of the Code. These provisions grant qualifying operators a variety of rights in relation to the apparatus and the land on which it is situated.
- Site owners/landlords of land not currently subject to Code rights can have rights imposed on them either temporarily or permanently by the court on the application of qualifying operators.
- A consideration of Code rights or potential Code rights is likely to be especially important in the context of development sites.