Support for Landowners through the changes to the 2017 Electronic Communications Code
The UK’s Electronic Communications Code (ECC) has been updated a number of times in recent months, to support the government’s broadband ambitions. The 2017 Electronic Communications Code came into force on the 28thDecember 2017, giving telecommunications operators statutory rights to install and operate electronic communications apparatus on, under or over land in connection with the provision of their network. The Code replaces the previous 1984 code, which was abolished by the Digital Economy Act 2017.
The new Code enables Code rights to be acquired by an operator in one of two ways: by written agreement with the relevant occupier or by an agreement imposed by court order.
On 30thOctober 2018, the Lands Chamber of the Upper Tribunal in England and Wales (UT) published the rulings of two cases that involved disputes over rights claimed under the ECC. These rulings provided a useful overview into the Tribunal’s thinking whilst highlighting the government’s commitment to reform the rules to deliver the required digital infrastructure.
The first ruling considered the rights of the Telecoms Operators to gain access to property to determine whether the building was suitable for installing electronic communications apparatus on. CTIL (Cornerstone Telecommunications Infrastructure Limited), the joint venture between Vodafone and Telefonica O2 wished to survey a building used as student accommodation by the University of London. The University refused access, citing safeguarding and welfare issues as the reasons why. The UT ruled that Cornerstone must be granted rights to access and survey the building.
The second case involved a dispute between telecoms operators EE and Three, and the mayor of London borough of Islington local authority (LA). The telecoms companies had requested rights to install apparatus on the top of a block of flats to replace equipment that was at the time housed on top of a building which was due to be redeveloped. The UT ruled that the telecoms companies should have rights to house the apparatus on the block of flats, with the condition that, if planning permission was refused for the development of the building which presently housed the apparatus, the companies would lose their right to install and use equipment on the block of flats.
The UT gave directions for EE to draft an agreement for the LA and to return it with any amendments for the parties to narrow the gap on their disagreements before the final hearing. The LA did not observe the directions and failed to provide an annotated copy of the agreement within the timeframe. Due to the LA’s failure to comply, the UT ruled that the LA was barred from objecting to the terms of the agreement. The decision of the UT was to impose a 10-year lease on the LA.
The dispute in this case was from the LA, who felt that the UT had no jurisdiction under the code to impose a lease on the parties. However, by not complying with the tribunal’s requests ahead of the final hearing, the LA lost all rights to object.
These cases highlight the need for landowners to know their rights under the new code for electronic communications. In addition, the second case, between EE and the London borough of Islington, stresses the absolute need to comply with the directions set out by the tribunal and to follow the guidance and outcome of the case.
The Commercial Department at Lawson-West is available to support landowners with guidance through the new code for electronic communications. In the first instance, please email Beverley Heys on bheys@lawson-west.co.uk or by calling our Leicester office on 0116 212 1000.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.
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