A recent EU Directive (2014/61/EU) (the “Directive”) designed to reduce the cost of broadband roll-out will have important implications for the Irish building industry. When introduced into Irish law in 2016, the Directive will require that:

  • newly constructed and renovated buildings post-2016 are broadband-ready; and
  • communications access points in buildings and associated in-building infrastructure (such as communications ducts) must be accessible to all communications networks operators eg broadband providers.

The new arrangements will need to be factored into the planning and design process for new and renovated buildings from next year. Any existing or proposed exclusivity arrangements between developers and communications network operators with respect to the communications fit-out of buildings such as housing developments and apartment complexes will also need to be considered.

Other broadband related measures in respect of access to utilities and communications networks (eg gas, electricity, water and telecoms physical infrastructure) together with streamlined planning processes will also apply and those working with the utilities and communications industries will need to be aware of the new rules.

As the Directive must be implemented in Irish law by 1 January 2016, new Irish Regulations are expected in the coming months. The new rules must be effective from 1 July 2016.

Background

The availability of high speed broadband has been identified as a key enabler of European and Irish economic growth. A series of measures at European level, designed to promote near-ubiquitous broadband availability across the EU, require that Ireland takes steps to facilitate the roll-out of next generation broadband.

In one of the measures addressing these requirements, the Department of Communications, Energy and Natural Resource’s National Broadband Plan aims to ensure that, by means of a combination of commercial investment and state subvention, broadband speeds of at least 30Mbps will be available to all homes and businesses across the country by 2020.

Ireland’s implementation of the Directive in 2016 will introduce measures complementing national broadband roll-out. Of interest to the building industry will be the requirements that new and renovated buildings are equipped with the infrastructure necessary to receive next generation broadband which can be accessed by all broadband network providers eg by ensuring that ducts and other equipment that can host broadband wiring are incorporated into building design and construction in the early stages.

Introduction of ‘broadband-ready’ obligations for new and renovated buildings

The Directive requires that all newly constructed buildings and buildings which undergo major renovation works for which applications for planning permission are submitted after 31 December 2016 must be equipped with infrastructure (such as miniducts) intended to host or enable delivery of next generation broadband ie broadband services with speeds in excess of 30Mbps (typically fibre). In this regard:

  • ‘major renovation works’ are those building and civil engineering works which require planning permission and involve structural modification of the entire or a significant part of in-building physical infrastructure relevant to broadband. In practice, interpretation of this requirement is likely to require some case by case analysis;
  • the same obligation applies in respect of multi-dwelling buildings, such as apartment complexes, which must be equipped with physical communications access points inside or outside the building which are available to all communications network operators for the purposes of making next generation broadband services available to all tenants; and
  • in implementing the new rules, Ireland is entitled to allow for exemptions from the ‘broadband-ready’ obligations where it would be disproportionate to insist on fulfilment of the obligations, such as in terms of the cost to the property owner (eg for single dwellings) or the type of building (such as historic buildings, holiday homes, monuments or military buildings). In order to help prospective buyers and tenants identify buildings equipped with next generation broadband infrastructure, the Directive envisages a voluntary ‘broadband-ready’ label for buildings.

The aim of these measures is to ensure that the majority of buildings are now designed and equipped to receive next generation broadband - with the result that reduced building set-up costs and increased consumer and business demand for fast broadband (eg for video-ondemand services such as Netflix and mobile workforce needs) will bolster the business case for the telecoms industry to roll-out next generation broadband nationally.

New building open-access measures for broadband

From the implementation date in 2016, the Directive requires that:

  • communications network operators must be given a right to roll-out their networks up to the communications access points in buildings (ie the physical point located inside or outside a building that enables a broadband connection to the building); and
  • in circumstances where duplication of any existing in-building communications infrastructure (eg internal ducts) is technically impossible or economically inefficient, communications network operators must be given a right to access existing in-building infrastructure with a view to deploying next-generation broadband.

In other words, the new rules will require that a broadband network provider must be entitled to provide its services to every building, including apartments or businesses within a building – excluding particular operators by reference to building exclusivity arrangements will no longer be permitted.

Where any rights of use have been granted over building communications access points and associated in-building infrastructure (eg under contractual licence arrangements), the party to whom those rights have been granted must provide access to third party communications network operators under fair and nondiscriminatory terms and conditions, including price. It is expected that this will affect broadband providers who negotiated access arrangements with builders and developers (eg in respect of housing developments or apartment complexes). They will need to open up their broadband infrastructure to competitors who wish to make their networks available in relevant buildings (for a fee).

The practical effect of these measures is a form of open access for buildings communications infrastructure. Measures of this type have existed for some time in France and Spain. While some (seldom used) Irish rules already exist in the field of access to and sharing of in-building communications infrastructure, the Directive will require that more far-reaching measures be taken – building open access must now be the default position. Exclusivity arrangements between developers and communications providers would seem less sustainable under the new rules.

Other significant provisions of the Directive- network infrastructure access obligations and streamlined planning processes

The Directive will also introduce significant measures in respect of:

  • access to utilities and communications networks (such as gas, electricity, water, roads, rail, ports, airports and telecoms): to facilitate the roll-out of next generation broadband, utilities will, amongst other obligations, be required to meet all reasonable requests for access to certain parts of their networks (eg pipes, masts, ducts, inspection chambers, manholes, cabinets, towers and poles) by communications network operators and give advance information about their infrastructure to them (eg location, route, type and current use of their infrastructure and a contact point).
  • streamlined planning processes: amongst other obligations, planning authorities will be required to ensure that all relevant information concerning the conditions and procedures applicable for granting permission for broadband related civil works is made available through a single information point (eg a web portal). The timeframes for responding to such applications must also be stream-lined, with a four month indicative timeframe for grants or refusals.

Comment

The new obligations will require careful consideration by the building industry and its advisors. Consultants will need to be mindful of the new obligations for their clients and ensure that they are taken into account in the construction scoping and planning phases. Planning authorities in turn will need to consider their existing practices with a view to streamlining timeframes and ensuring that information is made available to all interested parties via a single information portal.

The time table for implementation of the new rules is short - 1 July 2016, with the broadband-ready obligations applying to relevant works for which an application for planning permission is submitted after 31 December 2016. The building industry and its advisors should take steps now to identify the impact of these important changes for their activities.