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New Electronics Communications Code takes precedence over Landowners’ Rights

Landlords Beware the New Electronic Communications Code

Landlords Beware the New Electronic Communications CodeThe Digital Economy Act 2017 received royal assent on 27 April 2017. The Act covers a wide range of topics from digital intellectual property rights to the functions of OFCOM.  Schedule 1 of the Act introduces the new Electronic Communications Code.  The Code replaces the outdated code that was originally enacted in 1984 to regulate the provision of landline telephony.

Precedence over individual landowners’ rights
The provisions of the Code reflect the priority of the government on the development of the country’s digital infrastructure.  The furtherance of this aim clearly takes precedence over individual landowners’ rights.  The result is that the Code will have a significant impact on landowners, making it substantially easier for network operators to roll-out, repair and update infrastructure on public and private land.

A sobering point for landowners to note is that neither they, nor operators, will be able to opt out of the provisions of the Code. Further, the Landlord & Tenant Act 1954 will not apply to contracts made under the Code.

Less rent for mobile equipment on land
The Code introduces a valuation scheme for land similar to that used by utility providers.  This means that the value of the land is assessed on its value to the owner rather than to the operator.  The result is that landowners will be paid less rent for having mobile equipment on their land.  In addition, landowners will not benefit from further payment from other operators that share the site.

Under the Code, operators will have the right to upgrade and share equipment with other operators without having to renegotiate new terms or pay extra charges to the landowner.  It is unlikely that landowners will have a say in the size or amount of equipment installed.  The Code also confers broad ranging rights on operators of maintenance, upgrade and installation.

PHOTO: Elizabeth Deyong, Head of Commerical Property at Barr Ellison

Elizabeth Deyong is Head of Commercial Property at Barr Ellison Solicitors

OFCOM conducted a public consultation, which closed on 2 June.  However, this consultation did not encompass the substantive provisions of the Code; covering only the accompanying practices and procedures, template notices and voluntary standard terms and conditions. As with the Code itself, the provisions in the accompanying documentation and procedures heavily favour operators.

Biased in favour of Operators
Unsurprisingly, the submissions of landowners to the consultation process sought to redress this imbalance.  In its submission, Thornton Estates criticised the provisions stating that an operator is not required to give other parties prior notification of upgrades unless those upgrades impose an additional burden on the other parties. Thornton Estates pointed out that operators will not be able to fairly assess whether their upgrades will impose such a burden without first asking the other parties.

So concerned were Scottish Land Estates about the Code’s bias toward operators that in its submission it stated that the Code must do more to, “encourage landowners to seek professional advice in order to ensure both parties are entering into the agreement with full knowledge and understanding of the implications.”

The provisions of the new Code, and its surrounding practices and procedures, mean is that it is now imperative that landowners take legal advice whenever dealing with operators. This applies whether a landowner is considering entering into a new agreement or renewing a current agreement to which the Code did not apply.

For more information please contact Elizabeth Deyong (email: e.deyong@barrellison.co.uk) (telephone: 01223 417 267).

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

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