Legal Viewpoint: Momentum builds to ease access to telecoms sites

One of the more contentious proposals in the Queen's Speech was the government's shake-up of the market for provision of telecommunications apparatus.

A Department for Culture Media & Sport (DCMS) report issued last month proposes a radical overhaul of the Electronic Communications Code. Its aim is to give telecommunications operators easier access to land to provide a service that is now an essential part of everyday life.

The original code was enacted under the Telecommunications Act 1984. Despite some amendments, changes in technology over the past 30 years have left many claiming it is outdated and unclear. Building on recent reforms to the planning regime, the DCMS proposals aim to promote private investment in digital infrastructure, to be implemented through primary legislation as soon as possible.

The 1984 code laid down a mechanism for valuation of, and payment for, rights allowing operators to install and maintain apparatus on private land. Since then, owing to increased public demand and competition for sites, rents have increased. The government’s intention for the revised code is that landowners should receive a fair value for the use of their land, rather than an inflated rent incorporating a share of the economic value created by high public demand for the services that operators provide.

At present, disputes between landowner and operator are referred to county courts to resolve and determine terms of occupation. Under the new code, such cases will be referred to a specialist tribunal. A further mechanism to give operators easier access to land is the removal of the option for parties to "contract out" of the code during negotiations. The code will be binding and will prevent parties from making private agreements that could sidestep its provisions.

Finally, new rights will be included to allow operators to share or upgrade their apparatus without further payment or prior agreement with the landowner in many circumstances. Currently operators may be prevented from doing this unless they renegotiate the terms of their contracts. Significantly, the revised code will only apply to future agreements; it will not act retrospectively.

The objective of these reforms is clear – to promote the availability of sites for telecommunications equipment. This may drive down rents and limit the control landowners have over the terms of occupation. It it still unknown when, and even whether, the proposed amendments to the code will make it through to legislation, and in what form. But it is clear that momentum is gathering to improve access to telecommunications sites.

Lynsey Newman is head of property litigation at SA Law

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