Infrastructure Bill now includes proposed new Electronic Communications Code

The Public Bill Committee are expected to discuss the move to introduce the new Electronic Communications Code as part of the Infrastructure Bill (75-page / 417KB PDF) tomorrow having discussed other parts of the Bill previously.

The Infrastructure Bill was first put before the UK parliament for scrutiny in June last year. The plans to give legal effect to the new Electronic Communications Code through the Infrastructure Bill comes at a late stage in the legislative process. It is unclear whether the plans will win the support of the House of Commons and House of Lords.  The Electronic Communications Code would replace the existing Electronic Communications Code if the proposals are agreed to.

Telecoms and property law experts Alicia Foo, Dev Desai and Nicholas Vuckovic of Pinsent Masons, the law firm behind Out-Law.com, said there are a number of major changes set out under the new Code which, if brought into force, would have an impact on landowners, telecoms operators and the public. “Whether the changes are welcome depend on which side of the fence you are on,” said Foo.

One of the changes that would be introduced under the plans is the removal of 'security of tenure' rules that are set out under the 1954 Landlord and Tenant Act in cases where telecoms operators have been granted rights by a landlord to use their property to set up electronic communications equipment.

Desai said this means that the current tension between which of the 1954 Act and the Code prevails when operators use land owned by others will be swept away, leaving the Code to singularly govern the rights of land owners to remove telecoms operators’ equipment from their site.

This will simplify legal proceedings and reduce costs and uncertainty for land owners, he said.

Desai said the proposed new Code also sets out a "much clearer process for removing telecoms sites from properties once the commercial agreements between land owners and telecoms operators come to an end". Vuckovic agreed but noted the introduction of a two stage process for termination and ultimately removal of equipment. This would entail notices, conditions and court proceedings which may lead to a more drawn out process than is currently the case.

The existing Code gives telecoms operators the right to challenge attempts by land owners to remove their equipment from their property. Desai said that this allows telecoms operators to avoid sudden gaps in their network coverage and put contingency plans in place. However, Vuckovic’s concern is that currently the fact that operators are not bound by any time limits on bringing legal proceedings before the courts means land owners do face uncertainty and potential delay.

The proposed new Code would impose new time limits to which telecoms operators would have to adhere to bring proceedings before the courts. This would serve to "expedite proceedings" and allow land owners that win their case to remove telecoms equipment from their sites sooner, and thus avoid much of the potential delay they may experience. However, it is disappointing, Vuckovic said, that the delays caused presently by having issues determined in the county court are not going to be addressed, as county court jurisdiction is being retained under the new proposals. He said, though, the Secretary of State could intervene to change this to a more appropriate tribunal, such as the First Tier or Upper Tribunal.

Desai said, however, that some of the proposed Code changes are designed to benefit telecoms operators and network users. He said the Code would provide qualified rights to operators to upgrade their equipment on their sites, such as to support 4G mobile connections, irrespective of what the lease agreement says.

Desai said telecoms operators also stand to benefit from new rights to share telecoms infrastructure already established on a site. He said this would reduce the need for different telecoms operators to each install separate masts on a building, for example, and instead enable them to place their antennae on top of a single mast so as to facilitate network coverage and the consolidation of mast sites.

The new Code will also, if introduced as drafted, remove the rights of pre-emption that residential tenants in blocks of flats currently enjoy under the Landlord and Tenant Act of 1987 as interpreted in a 2008 case before the High Court in London. That case has led to much debate and criticism as to the effect of the Act on the installation of telecoms equipment and other dealings with parts of residential blocks of flats. The Act currently requires landlords to give tenants a right of first refusal where they intend to dispose of any interest in their property.

The Law Commission previously made recommendations to the UK government about changes to the Electronic Communications Code. The plans to introduce the new Code come after the UK government stepped back from legislating on plans to address what it said is the 'not spot' problem of patchy network coverage delivered by mobile network operators after reaching a binding agreement with those operators on measures to address the issue.

Foo said: "It is pleasing that after years of prevarication and a Law Commission report that the reforms look as if they might make it onto the statute book. However, it is hoped that the speed at which it has been introduced, as it appears as a last minute addendum to the Infrastructure Bill, does not lead to the criticism presently levelled at the existing Code. We hope that the claim that the current Code is 'one of the least coherent and thought-through pieces of legislation on the statute book' will not equally apply to any new revised Code".

This article has been updated to include further analysis