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UK Electronic Communications Code to become law on 28 December

A new Electronic Communications Code setting out rights and obligations regarding the deployment and maintenance of mobile phone masts and other telecoms infrastructure will become law in the UK on 28 December.15 Dec 2017

The substance of the new Code is contained in the Digital Economy Act, which received Royal Assent earlier this year. Some provisions of the Code were brought into force earlier this year to give the government the power to write new regulations to bring the Code into effect. Some of the regulations to achieve that purpose were introduced before parliament in the autumn.

Now the government has published a commencement order which has confirmed that the remaining provisions of the new Code will take effect from 28 December.

Under the new Code, landowners would have less freedom to charge premium prices for the use of their property by telecoms companies. This is because, under the new Code, rent rates would effectively be based on concepts similar to compulsory purchase order (CPO) compensation which disregard the fact that the site has a telecoms use. Valuation surveyors will now be faced with the task of interpreting the legislation and coming up with valuations in accordance with the new Code.

The new code should also make it easier for telecoms companies to upgrade and share their equipment, such as masts or cables, without having to pay landowners extra.

The new framework would only apply to agreements entered into after the new Code comes into force, although in some cases it is likely to have a degree of retrospective effect.

Property dispute resolution specialist Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said it will be interesting to see whether the new Code leads to "seismic change" in respect of the ease and speed with which new communications technologies will be deployed. She said there are concerns over whether the government's ambitions for the new Code to deliver in this respect are met in practice.

"The new Code brings its own new interpretation problems and 2018 promises to be an interesting new year in this area of law," Foo said.

Property law expert Ian Morgan of Pinsent Masons said: "The primary purpose of the new Code was to re-set the dial on the speed and ease with which electronic communications apparatus such as phone masts can be rolled out, supporting the government’s vision for the UK’s digital future."

"There has been much spirited debate within the industry about the effects of the new Code on issues such as ‘rents’ for the siting of electronic communications apparatus, and the ease with which network operators can upgrade and share electronic communications apparatus. From 28 December, when new Code will come into force, we will begin to see whether and to what extent the government’s vision will become a reality," he said.

In addition to the new commencement order being published, the UK telecoms regulator Ofcom on Friday published its finalised code of practice on the new Electronic Communications Code, in addition to standard terms and template notices that industry will be obliged to use in contracts subject to the new Code.

The Ofcom code governs how telecoms operators and landowners should interact with one another over the installation, maintenance and upgrade of electronic communications infrastructure and encourages a collaborative approach between the hitherto polarised parties. If there is to be a determination of issues between the parties under the new Code, the new framework requires this to be in a new forum for disputes in the Upper Tribunal in England and Wales rather than before the county courts.

Foo said that this will bring its own challenges for stakeholders.