What are the existing rights of telecommunications operators under the Electronic Communications Code and what new rights will they have as a result of the proposed Telecommunications Infrastructure (Leasehold Property) Bill?

The rise of the digital economy, including superfast broadband and technologies such as 5G, requires a significant increase in infrastructure, such as masts, cabling and routing stations. At the same time, those concerned about having a telecommunications mast, particularly a 5G mast, have increased.

The government wanted to ensure that electronic communication networks were increased (to tackle issues such as “not spots” where there is no mobile coverage, and the need for increasing speed), so a significant change in the powers of telecoms operators to install and maintain equipment on land was introduced in December 2017 with the Electronic Communications Code (the Code).

To ensure that telecoms operators have all the powers required, it is proposed to vary the Code by the Telecommunications Infrastructure (Leasehold Property) Bill. The Bill will ensure Code rights in respect of land connected to leasehold premises, such as residential blocks.

This article looks at, firstly, the Electronic Communications Code and, second, at the likely impact of the Bill on residential leasehold premises. How will these change telecommunications operators’ rights?

The Electronic Communications Code

The Electronic Communications Code was introduced by Schedule 3A Pt 1 of the Communications Act 2003 and is found in Schedule 1 of the Digital Economy Act 2017. The Code replaces the previous Telecommunications Code set out in Schedule 2 of the Telecommunications Act 1984 (the Old Code).

The aim of the Code is to strike a balance between the competing interests of landowners/occupiers, the telecoms industry and its customers, who desire greater access to electronic communications services.

One of the most significant changes under the Code is that operators have the right to upgrade or share apparatus where certain conditions are satisfied. In addition, the Court has the power to impose agreements on land owners where the parties are unable or unwilling to agree terms.

What are Telecommunications Operators’ Code rights?

Under Part 1 of the Code, a Code right is defined as being a right in relation to an operator and any land, for the statutory purposes of providing an operator’s network or an infrastructure system, to carry out various activities, including:

  1. Installing and keeping installed electronic communications apparatus on, over or under land;
  2. Inspecting, maintaining, repairing, altering, upgrading, or operating the electronic communications apparatus on, over or under land, or entering land and carrying out works in connection with these activities in respect of apparatus on over or under land or elsewhere;
  3. Carrying out any works for, or in connection with, the installation of electronic communications apparatus on, over or under land or elsewhere;
  4. Connecting to a power supply;
  5. Interfering or obstructing a means of access to or from land, whether or not the electronic communications apparatus is on that land (although only if the occupier of any other land is bound by a Code right); and
  6. Lopping or cutting back trees or vegetation that interferes, or may, or will interfere with, electronic communications apparatus.

Under Part 4 of the Code, if an operator requires a person (ie. a leaseholder or other occupier) to confer or be bound by a Code right, and the parties are unable to reach agreement, an operator may apply to the Upper Tribunal for an order under paragraph 20 of the new Code, requiring the relevant person to agree to grant or be bound by a Code right, exercisable by the operator.

Who are the Operators?

An ‘operator’ is a person to whom the Code applies, under a direction from Ofcom. Ofcom’s website contains a full list of operators, by the main telecoms providers such as BT, EE, Vodafone, O2 etc. are all ‘operators’.

Ofcom’s standard terms

Ofcom is obliged to prepare standard terms which operators may, (but are not obliged to), use in negotiating the terms of Code agreements. A copy of the standard terms is available on the Ofcom website. They provide a starting point for negotiations, ensuring important terms are not forgotten and can be amended to meet particular circumstances. In practice, land owners should be advised to review the proposed terms carefully.

Why is the Code significant?

The Code gives to operators significant powers to install equipment.

Various Upper Tribunal cases have tested the powers of operators to enter land to survey and install equipment, and only in limited circumstances can a land owner successfully oppose the operators. The Upper Tribunal can impose agreements and the level of consideration (rent) and compensation awarded is limited.

A good example came in EE Ltd and another company v Mayor and Burgesses of the London Borough of Islington [2019] UKUT 53 (LC). The Tribunal imposed an agreement for the installation of equipment for ten years on the roof of a block of flats despite opposition by Islington LBC as freeholder. Rent was assessed at just £1,000 per year and no compensation for increased wear to the roof was ordered, even though there was evidence that the service charges of leaseholders may increase.

It is also very difficult to force the removal of operators once agreements end. They enjoy statutory protection and have the right to renew their agreements. There are only limited grounds to terminate an operator’s agreement.

What of the Telecommunications Infrastructure (Leasehold Property) Bill?

The Bill is making its way through the House of Lords at the time of writing. The Bill proposes to insert a new Part 4A into the Code. The effect will be as follows:

If a tenant in occupation of a residential property which forms part of a ‘multiple dwelling building’ (a building which contains two or more sets of premises which are used as, or intended to be used as, a separate dwelling, such as a block of flats) requests that an operator provides electronic communication services to its property, and, in order to provide these services to the tenant, the operator requires a freeholder or RMC (known as the ‘required grantor’) to agree to confer Code rights in respect of connected land, such as common parts or to agree to be bound by Code rights, it can serve notice on the freeholder or RMC.

If the Operator serves notice but the freeholder or RMC fails to respond:

  • If, following the subsequent service of two warning notices and a final notice on the required grantor by the Operator, no response is received, the Operator may make an application for a order imposing an agreement; and
  • Where the Upper Tribunal is satisfied that the application requirements have been met and the required grantor has not objected to the making of an order, it may make an order imposing an agreement.

In short, leaseholders who want better broadband or cable, or even better mobile reception, will be able to request an operator to exercise its rights to impose an agreement on the landlord, even if that is not a right given to the leaseholder under a lease. The ability to install equipment on “connected land” could mean gardens, the roof, the car park, or even the side of a building.

Conclusion

Landlords, management companies and managing agents should be aware of the Code rights of telecommunications operators. In built up areas, the roof of a block of flats is potentially a good place to site a mast or equipment.

Cases such as EE Ltd and another company v Mayor and Burgesses of the London Borough of Islington demonstrate the fact that operators can install equipment on the roof of a block, and the compensation that may be ordered is unlikely to reflect the additional service charges arising from management and ongoing use of the installation.

The additional provisions of the Bill to allow leaseholders to request the installation of services from operators will also pose a management problem, particularly if a body of occupiers strongly objects to a telecommunications installation on concerns about the potential health consequences of an installation.