The 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 The Code replaces the outdated code that was originally enacted in 1984 to regulate the provision of landline telephony.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.
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.
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.
More Commercial Property Articles
Advice on the legal structure of sale and leaseback transactions which would allow businesses to remain in occupation of their current operating sites while raising much needed cash in the short term.
If you are considering lease variations, get in touch to talk through how these can best done most effectively.
This case demonstrates the impact of technology on practices that have developed prior to that technology.
The case provides a lesson to all involved in the sale/purchase of a property. Make it clear, from the outset, both in negotiations and in the contract, what is included in the sale and [...]
The High Court has granted the European Medicines Agency the right to appeal its decision that its Canary Wharf lease has not been frustrated by Brexit.
The background to this case provides sober reading for any landowners of vacant sites. In this instance, around 2000 tonnes of waste including food and medical waste was deposited on Newark’s vacant land without [...]
The government is keen to afford residential tenants greater security and the increasing obstacles to service of a Section 21 Notice appear directed at this. There is now a consultation upon removing the blanket [...]
Anybody entrusted with selling property on the behalf of a lender can take comfort in the robust approach shown by the Court.
It is always preferable for leases to contain express reservations to alter, build and erect scaffolding in favour of a landlord who might want to develop at some point in the future.
When opposing the grant of a new tenancy, the Supreme Court has introduced an additional “acid test” for landlords in relation to reconstruction work as a reason to oppose the grant of a new tenancy. [...]
A Court of Appeal decision serves as a warning to developers of the dangers of proceeding with developments in breach of a restrictive covenant.
The Supreme Court held that the landlord’s intention to demolish or reconstruct must be independent of the tenant’s claim for a new tenancy and not conditional upon it.
In new leases, it will be prudent for landlords to ensure that any enforcement covenants are qualified by a reasonableness requirement, as determined by the landlord.
Speedier Alternative to the County Court Bailiffs: there is an alternative and frequently quicker route once a County Court Possession Order has been obtained.
A landmark case has clarified the scope of an action for nuisance based on the presence of Japanese knotweed.
A landlord is no longer be able to serve a Section 21 Notice at the start of the tenancy requiring the tenant to leave at the end. Of even greater concern are the retaliatory [...]
Tenants’ circumstances change. When can a landlord reasonably refuse a tenant’s request?
Trespassers will be prosecuted; a phrase familiar to all property owners. Often, the highest priority for a property owner is to regain possession as quickly as possible.
A recent Court of Appeal case has highlighted the importance for tenants to comply with subletting covenants when granting underleases, even when tenants believe that the covenants don’t make commercial sense.
A recent High Court case has emphasised the importance of getting assignments of leases registered before the new tenant takes any steps under the lease.
The Court of Appeal has found that a term to deal with planning permissions can be implied in a construction contract ...
The Court of Appeal has recently provided clarification to both residential and commercial landlords as to how they can reasonably withhold their consent to the assignment of a lease.
A recent High Court decision has prompted many commentators to announce the end of security of tenure for business tenants.
Where planning permission is granted, reasons for the grant of such planning permission may be required to be given, even where there is no statutory duty to do so.
The equity of exoneration principle states that if a spouse incurs a debt, secured against the property for his or her own benefit, the creditor must be paid out of that spouse’s share of the [...]
This case is a valuable reminder to commercial landlords of the importance of using common sense as a guide when dealing with potential tenants.
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.
Rented commercial properties have to meet certain minimum energy efficiency standards (MEES) designed to reduce greenhouse gas emissions.
The Supreme Court has today (1 March 2017) overturned a previous judgement by the Court of Appeal in which an office building that was undergoing redevelopment was deemed capable of occupation and therefore liable for [...]
How landowners can stop people from acquiring a right to park on your land simply and cheaply ...