The Electronic Communications Code and Proposals For Reform

This note updates an article in March 2013 by IBB’s Commercial Real Estate team.

Background

Mobile telephone and other communications operators need to transmit their signals from masts or other equipment as part of their networks.

Since 1984 there has been legislation designed to help with the installation and maintenance of electronic communications networks. It gives rights to the providers of these networks to install and maintain apparatus in, over and under land.

Initially called the Telecoms Code, it was updated in 2003 to reflect the changes in technology and was renamed the Electronic Communications Code (or Code for short).

Rights and powers

The Code regulates the legal relationships between property owners and the operators, and in particular:-

1. allows the operators to acquire compulsory rights over land in some cases.
2. imposes restrictions on an owner’s power to relocate and remove the equipment, and sets out compulsory procedures that can involve court proceedings.

In addition to the powers and rights that exist under the Code, in some cases the arrangement between the owner and operator can technically amount to a lease. This can happen even if it was not intended and the agreement is not called a lease. It can give the operator additional rights as a protected business tenant.

The combination of these rights and powers can have a serious effect on an owner’s use and plans for land or buildings. Although in most cases the communications operators prefer to deal with issues amicably, they are fully aware of their rights and owners should assume that they will use them.

Proposals for reform

Many people consider the current rules to be complex, confusing and out-dated.

In February 2013 the Law Commission published a report with its recommendations for reform.

The Infrastructure Bill was introduced in the House of Lords in June 2014 and reached the Committee stage in the House of Commons. On 13 January 2015, the government proposed amendments to the Infrastructure Bill that would update the Code, including:-

1. A clearer procedure to enable owners to require the removal of electronic communications apparatus from land or buildings.
2. An exclusion from the landlord and tenant legislation to prevent a typical agreement becoming a protected lease.

However on 22 January 2015, the government withdrew the proposed amendments to the Infrastructure Bill and agreed to consult further, particularly on the issues the stakeholders raised.

The Department for Culture, Media and Sport carried out a consultation on reform of the Code between February and April. A full copy of the consultation documents can be viewed on the Government’s website – www.gov.uk/government/consultations/consultation-on-reforming-the-electronic-communications-code

So for the time being the property industry is stuck with the current Code with its anomalies and uncertainties.

For more information please contact Ryan Diamond, Senior Solicitor in IBB’s Real Estate Dispute Resolution team on 01895 207986 or ryan.diamond@ibblaw.co.uk.