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The New Electronic Communications Code

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The Electronic Communications Code regulates the relationship between electronic communications network operators and site providers in the UK. It establishes agreements to host and maintain communications apparatus on land and property.

communications towerThe Digital Economy Act “DEA” was made on 27 April 2017. The current code is replaced by the new code in schedule 1 of the DEA 2017. Changes relating to valuation, site sharing and upgrading, assignments, dispute resolution and the disapplication of the Landlord and Tenant Act 1954 to code leases are made by the new code.

Why has the code changed?

Vast changes have taken place in digital communications since the Code was first established in 1984. The new Code is designed to take these developments, and future technological evolutions, into account.

What are the changes?

  • Operators can upgrade apparatus and share it with another operator without the landowner’s consent providing that it results in minimal adverse visual impact and does not cause any burden on the landowner
  • Operators can freely assign code agreements to another operator without the landowner’s consent
  • The Landlord and Tenant Act 1954 will not apply to a lease. However code agreements continue in effect after the date of termination unless positive action is taken by the landowner
  • Parties are not permitted to make private agreements that exclude code provisions
  • Sums payable to landowners will not be assessed on an open market basis. Compensation will be assessed on a no-scheme basis
  • Ofcom can generate code of practice and provide standard forms of documentation governing the grant of code rights

Benefits of the changes for operators

Operators will see significant cost savings as a result of the way in which compensation is assessed and the flexibility of upgrading and sharing apparatus offered by the new code will be of great advantage.

What does this mean for landowners?

  • Landowners will have less certainty as to which operator has equipment on their land
  • Parties cannot exclude provisions of the new code, and so development of land may be considerably more difficult if telecommunications equipment is located upon it
  • Sums payable to landowners will be lower when compensation is assessed on a ‘no-scheme’ basis
  • There is greater clarity brought by the confirmation that LTA 1954 does not apply to a lease. Under the current code, there is less certainty as to how a lease can effectively be ended. Under the new code, the only statutory right of renewal will be governed by the new code

What might the consequences be?

Landowners may become even more reluctant to agree installation of telecommunications equipment on their land. Given the lack of certainty surrounding the level of equipment which may be installed and the fact that compensation is to be valued on a no-scheme basis, commercial incentive to provide land for this use seems to be non-existent.

Furthermore, rather than agreeing to the grant of a new telecoms agreement that is protected by the new code, landowners may push for renewals of agreements for the assurance that it is protected by the current code.

In conclusion, it seems the new code is far more favourable to operators and is less likely to be welcomed by landowners.

If you are a landowner or operator and require advice in relation to the code, contact us on 0114 276 5555.

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