With mobile networks rapidly expanding, there is an ever-growing need for electronic communications apparatus (ECA), such as phone masts and fibre broadband cables. The Electronic Communications Code 2017 gives telecommunications operators statutory rights to facilitate the creation and operation of their networks. This article explores the Code, and what this means for landowners who have entered or are entering into a telecommunications lease.
The Electronic Communications Code 2017
The Electronic Communications Code 2017 (the Code), as implemented by the Digital Economy Act 2017, was introduced with the aim of striking a different balance between the competing interests of landowners, occupiers, the telecoms industry, and its customers. The Code is set out in Schedule 3A of the Communications Act 2003. It provides a framework which governs the rights of landowners and operators in the installation in the management of electronic communications apparatus.
When does the Code apply?
Agreements entered into before 28 December 2017 do not automatically fall entirely under the 2017 Code. Instead, transitional provisions apply, and parts of the new Code may be excluded for those agreements. Whether those pre‑existing agreements have security of tenure under the Landlord and Tenant Act 1954 depends on whether they qualify as business tenancies, whether they were contracted out, and how they interact with transitional provisions
For agreements entered into on or after 28 December 2017, if their primary purpose is to grant Code rights, then they will typically be excluded from the security of tenure regime under the Landlord and Tenant Act 1954, and instead they will rely solely on the protections in the Code (unless the parties negotiate otherwise).
Who can exercise powers under the Code?
The Code only applies to persons in whose case Ofcom has given a direction applying the Code.
How are Code rights obtained?
Code rights can be conferred onto a landowner or occupier either by agreement or can be imposed by the Court. The operator must give written notice to the landowner, seeking its written agreement to the Code right. If, following the notice period (usually 28 days unless varied), agreement is not reached, the operator may apply to the Upper Tribunal for an order imposing the Code right.
What rights does the Code give?
Code rights are conferred on an operator (i.e. a person to whom the Code applies). Examples of Code rights include
- Installing ECA on, under or over the land
- Keeping ECA installed
- Inspecting, maintaining, adjusting, altering, repairing, upgrading, or operating the ECA, and many more.
A key feature of Code rights is that they are binding. This means that the rights continue in statute to any successors in title to your land (i.e., someone buys your freehold), and anyone deriving an interest from your title (such as a tenant), or anyone in occupation of the land.
What are the common areas of dispute?
It is vital for landowners and operators to understand the complexities of the Code and the rights it confers. While operators have the statutory right to require the conferment of Code rights, it is important to note that landowners do have an opportunity to negotiate terms that govern the operation of these rights.
It is common for disputes to occur upon a wish to terminate Code leases. A landlord may wish to renovate, repair, or redevelop the land on which the ECA resides.
A landowner can require the removal of ECA on, under or over that land in certain circumstances.
Some of which include:
- If the landowner has not been bound by a Code right entitling the operator to keep the ECA on, under or over the land
- If the operator had a Code right that has come to an end either as a result of the operation of the Code or because it was conferred in a lease that was not a Code agreement
- If the ECA is not or is no longer used for the purposes of the operator’s network and there is no reasonable likelihood that it will be used for that purpose
If you’re facing an issue with a telecommunications lease, whether you are a landowner, occupier or an operator, seeking expert legal advice from specialists experienced in this area is highly recommended to ensure all legal requirements are correctly handled, safeguarding your property interests effectively.
If you’re dealing with a telecommunications lease or facing issues under the Electronic Communications Code, contact our expert legal team today on 0161 696 6170 for clear, tailored advice that protects your property interests and ensures compliance.
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