Let’s admit it, we live in a world where we insist upon instant access to high-speed digital media. It has infiltrated our daily lives. Infrastructure can barely keep up with demand. But how do you juggle the yearning of the electronic communication operators to get equipment up and running on a site as soon as possible, with the prudent concerns of a landowner about having equipment on their land? The government’s answer: the Electronic Communications Code (“the Code”), which came into force on 28 December 2017.
The Code replaces all previous legislation relating to electronic communications and seeks to provide certainty in what has been a problematic area. Here’s what you need to know if an operator is seeking to exercise rights over your land:
Who is bound by the Code?
Code rights are all rights listed in the Code as standard in a telecoms site agreement. This includes rights of access and rights to repair equipment, all of which bind occupiers of land. This can include tenants and licensees and their successors in title.
Occupiers only have 28 days following notice of proposed terms being served to them to either agree to the terms or serve a counter-notice. If an occupier does neither, an operator can apply for a court order to unilaterally impose rights on them. The court can impose an extensive range of rights, including consideration (see below). The only reliable ground for defeating such a court order is an intention to redevelop the land or neighbouring land. The court must be satisfied that such works could not be carried out if the order was made.
Upgrading or sharing of equipment
Any clause which seeks to penalise an operator who shares the site with another operator, upgrades their own equipment, or contains an absolute rebuttal for an operator to do this all together, will be void. This is subject to the limitation that any changes must have no more than a minimal adverse visual impact and no “additional burden” must be created. Neither of these limitations is defined in the Code, so it will fall to the courts to interpret them over time.
Termination of Code rights
To end Code rights, an occupier must first bring the agreement creating the rights to an end and subsequently apply for removal of the equipment.
In order to terminate the agreement, an occupier must serve notice on the operator. The notice period cannot be less than 18 months from the date of the notice and cannot end before the date that the agreement would have otherwise ended. The notice must specify the grounds for removal, such as breach of covenant or persistent late payment of rent.
Once the agreement has ended, an occupier must serve notice on the operator specifying a reasonable period for removal of its equipment and restoration of the land. The operator then has 28 days to respond and reach an agreement with the occupier. Otherwise, the occupier can apply for a court order for the sale of the equipment.
Other key provisions
Notices: The Code is heavily reliant upon notices being served for many of its provisions to take effect. The form of these notices is often prescribed and it is best practice if any notice is required (or indeed received) to take legal advice as to the form and content, as failure to comply may result in time-consuming and costly litigation.
Whilst it is in all the parties’ best interest to reach a voluntary agreement as to terms, operators can, and no doubt will make use of their right to apply to the court where agreement looks impossible to reach. The eventual order imposed by the court may be far less appealing to the landowner that was originally proposed and they will lose whatever bargaining power, however small, that they may have had.
A prudent occupier should be advised to pick their battles with electronic operators carefully from now on!
If you require any assistance with any proposed agreement, contact our team and we would be pleased to assist you.