The draft of the new code has made a surprising appearance as a last minute amendment to the Infrastructure Bill, and so taken the next step towards coming into effect which is fortunate given that the existing code has been widely, and judicially, deplored, to such an extent that it was rarely relied upon. The “telecoms code” as it is colloquially known, gives rights and protections to those who run electronic communications networks and is relevant to land owners who lease mast sites to operators.
The code has long been seen as confusing and unnecessarily complicated so the new draft, with its plain English drafting and its question and answer format, though very much longer than the present code, is to be welcomed. The particular points for land owners to note are:
- “code rights” are granted both for the purposes of providing telecoms infrastructure and for the operation of a network and code rights can still only be conferred upon an operator by agreement between the land owner/occupier and the operator and still bind the land owner’s successors in title;
- provisions in any agreement between land owner and operator that purport to restrict assignment of the agreement by the operator will be void, but if the agreement is in the form of a lease the operator may be required to enter into an authorised guarantee agreement upon assignment;
- regardless of what the agreement with the land owner states as to alterations or underletting, an operator may upgrade or share its apparatus provided that the conditions set out in the code are met e.g. no more than a minimal adverse impact on the appearance of the equipment;
- a lease with the “primary purpose” of granting code rights will not be protected by the security of tenure provisions of the Landlord & Tenant Act 1954 – the new code now makes it clear that this is an either/or situation; nor will it be a “relevant disposal” triggering the tenants’ right of first refusal in a residential situation under the Landlord & Tenant Act 1987;
- at least 18 months’ notice is to be given to end a code agreement and even then the land owner must make out one of the grounds set out in the code e.g. redevelopment or substantial breach of the agreement by the operator.
The draft code may yet be amended as it passes through Parliament but as it does take into account the Law Commission’s previous recommendations on the subject, it is unlikely that any amendments will be substantive. The new edition of the code will not be retrospective so there will be two regimes to deal with going forward, but this additional complication is more than made up for by the greater clarity of the code and the settling of the 1954 and 1987 Act questions.