Navigating the 2017 Electronic Communications Code

The Electronic Communications Code provides a framework governing the rights and obligations of both landowners and operators in the installation and maintenance of electronic communications apparatus such as phone masts and fibre broadband cables.

Code rights cannot be contracted out of and an operator can require a landowner to confer a Code right or rights. To do so, the operator must give written notice to the landowner seeking its written agreement to the Code right. If the relevant person does not agree within 28 days or gives the operator a counter notice that they do not agree, then the operator can apply to Court for an order imposing such rights.

In this article, we explore the rights the Code confers upon operators and examine the importance for landowners of entering into written agreements voluntarily as opposed to leaving it to the courts to impose the agreement on them.

The Code rights that can be acquired by operators are wide-ranging and include the freedom to:

• install and keep telecoms apparatus on, under or over the land;
• inspect, maintain, adjust, alter, repair, upgrade or operate the apparatus;
• carry out any works on the land in connection with the installation or maintenance of the apparatus;
• enter private land to inspect, maintain, adjust, alter, repair, upgrade or operate their apparatus;
• connect to a power supply;
• interfere with or obstruct a means of access to or from the land; and
• lop or cut back trees or other vegetation that interferes with apparatus.

It should be noted that not all rights may be relevant to every situation and the operator may seek some or all of them.

As outlined above, the process for obtaining Code rights requires that an operator must first serve a written notice on a landowner to confer or be bound by Code Rights. Operators will usually make an informal approach before serving formal notices, and landowners should strongly consider accepting this opportunity to negotiate a written agreement. Whilst Code rights are statutory rights, an amicably negotiated agreement is likely to result in a better – and considerably cheaper - outcome than allowing the dispute to be taken to court.

The court decisions published since the 2017 Code came into force have demonstrated that courts by and large tend to favour the operators where there is a dispute about terms. That is because the court’s guiding principle is that the purpose of the Code was to facilitate the roll out of communications equipment more easily and cheaply. That said, the court is also required to ensure that the least possible loss and damage is caused by the exercise of the code right to the landowner. Every case is different, and there will be circumstances where the court can be persuaded that the Code rights need to be limited in some way as a result of particular features of the land or landowner. But it still remains the case that a consensual agreement, negotiated by lawyers, is most likely to achieve the aims of both parties at the lowest possible cost and level of risk.

Whilst the majority of operators insist on their own form of agreement, there is usually scope for some reasonable negotiation of the commercial terms of the agreement and the opportunity to include terms governing the operation of the Code rights it confers.

Set out below are four points to consider whilst negotiating such agreements:

• ‘Lift and shift’ – provisions permitting the landowner to require relocation of apparatus are often of paramount importance. Having the flexibility to move the apparatus to another location on a site can enable redevelopment to take place efficiently. It is important to ensure that the agreement sets out a clear mechanism for arranging the relocation including requiring the parties to co-operate in finding a suitable alternative location and providing clarity about timescales and the resolution of disputes.
• Compensation – where the court confers Code rights on an operator, the court will consider whether any compensation is due for any loss or damage sustained or to be sustained by the landowner due to the exercise of the Code right. The landowner may also be entitled to compensation for their expenses and the diminution in value of the land. However, where rights are granted pursuant to an agreement, the parties may not have considered if any compensation should be paid and therefore a landowner should consider whether any expenses or costs may be incurred which ought to be passed onto the operator. A quirk of the Code is that the right to compensation for losses that may be incurred during the term of the agreement only kick in if the agreement is imposed by the court. Therefore, a voluntary agreement will need to provide for this right expressly.
• Exercise of the rights – whilst Code rights are statutory rights, the landowner and operator can agree parameters in which those rights are exercised. For example, the time of day the rights can be exercised; whether reasonable notice is required to access onto the land; and whether the operator should be accompanied whilst accessing the land. There may also be other operational considerations that the landowner requires an operator to comply with.
• Rent – in many cases, the valuation principles under the 2017 Code mean that rent will be significantly lower than pre-2017 levels. A good telecoms surveyor can negotiate the best rent and compensation terms for landowners. 
  

Just a short word about avoiding the imposition of Code rights. If a landowner wants to have existing apparatus removed or avoid new apparatus being installed, the Code does allow some limited grounds to achieve this. The landowner will need to demonstrate that the prejudice that would be caused to the landowner outweighs the public benefit in the apparatus or that a redevelopment is planned. Although this will be difficult to achieve, it is not impossible. Landowners should take legal advice promptly to consider their options.

Understanding the intricacies of the Code and the rights it confers is vital for both landowners and operators. The Code provides a structured framework governing the installation and maintenance of electronic communications apparatus, ensuring efficient digital connectivity while balancing the interests of both parties involved.

While operators have the statutory right to require the conferment of Code rights, landowners are presented with an opportunity to negotiate terms that govern the operation of these rights. Opting for a written agreement provides a route which fosters a constructive and mutually beneficial relationship.