This week, the Government has given its long-anticipated response to the Consultation on the reform to the new Code that they instigated earlier this year.

For the full response click here.

In the Spring Batcheller Monkhouse put forward its contribution to the Consultation in the hope that those areas identified by the Government as inhibiting the swift and cheap roll out of new technologies were not further altered to such an extent as to alienate landowners even more.  In our opinion the Code, and the way it has been interpreted by the Tribunals, had already introduced many provisions that were weighted in favour of the Operators.  Our concern was that further reform may have resulted in yet more changes that would impact on property interests, thus alienating landowners further and creating even more resistance to what is clearly an already strained relationship.

We summarise the response below.

Initial reading suggests that overall, it might not be the “bloodbath” that some commentators were expecting.  However, the detail will be in the legislation which will now follow when Parliamentary time allows.  It appears to us that the changes proposed will encourage continued dialogue for consensual agreements and that we must be thankful for.

Complaints handling.  Ofcom will be required to oversee complaints about operators’ conduct regarding negotiations for code agreements and the implementation of Ofcom’s Code of Practice. Operators shall be required to have their own Complaints Handling Procedure.

Failure to follow the Code of Practice.  The government will not introduce Statutory Enforcement of the Code of Practice but will encourage engagement between Ofcom, Site Providers and Operators on a review to the current Code of Practice.

Fast track procedures.  The Government agrees that all disputes should be dealt with promptly, but considered that no further procedures need to be introduced.  However, regulations will be amended to allow disputes to be commenced in either the Upper Tribunal or the first-tier Tribunal rather than the traditional County Courts.

Non-responsive landowners.  The Government considers that the Telecommunications Infrastructure (Leasehold Property) Act 2021 should be extended to land and not just buildings.  Where the landowner has failed to respond to repeated requests for access and no response to the Operator is obtained despite a further three notices, the operator can apply to the first-tier Tribunal for a short-term new Code agreement (of up to 6 years).  If the landowner subsequently responds, normal procedures should resume and the owner will be able to claim compensation.

Who can agree to grant code rights?  Currently as Operators can only seek Code Rights from the occupier of the land, they cannot seek such rights if they themselves are in occupation.  The government proposes to change this so that the Operators in occupation can seek code rights from the landowner.

Modifying agreements.  No changes are proposed that would enable either party to apply to the Courts for a change to an agreement if a change cannot be agreed consensually.

Upgrading and sharing apparatus.  No changes proposed to Paragraph 17 of the Code.  Paragraph 17 provides that upgrading or sharing, which has very little additional impact on the Site Providers, should be permitted without negotiation or payment.  The government recognised that the interpretation of Paragraph 17 has been considered by the Courts and does not feel that further changes are needed. Separate rights above Paragraph 17 can be agreed or imposed however the Government do propose to make changes to the Code to make sharing of Apparatus a Code Right (but not the sharing of any Code Right itself);  sharing of those rights must be negotiated separately.

Upgrading and sharing under old Code Agreements.  The government will allow retrospective changes to allow upgrading and sharing under “old code” agreements but only where equipment is located underground (i.e fixed-wire installations) and will have no additional burden on the land. (drafting note – para 4.33 of the Gov Consultation Response)

Expired agreements. The procedure and framework for the renewal of protected leases will be more aligned to the Code, but the other statutory provisions and protections provided by the Landlord and Tenant Act 1954 (“LTA1954”) will be retained. Agreements protected by the LTA1954 will be renewed not by applications to the County Courts but by the first-tier Tribunal or the Upper Tribunal.  Where an Operator cannot use renewal procedures [presumably, such as Implied Periodic Tenancies protected by the LTA1954] it seems that the Government will allow that operator to seek a new agreement under Part 4 of the Code.

Timescales for code disputes.  At the moment disputes relating to new Code agreements must be dealt with by the courts within six months.  The government will change this to enable all disputes to be referred to the first-tier Tribunal or the Upper Tribunal and will build in flexibility in the legislation over timescales for dealing with a particular dispute.

Interim arrangements for renewal negotiations.  Government propose to allow applications for interim orders (on not just financial terms, but also modification of other terms) pending resolution of disputes relating to renewal agreements.

Tom Bodley Scott MRICS FAAV, Partner, Head of Telecoms.
24 November 2021.

Contact Tom on 01892 509280.