Summary of government’s response to the January 2021 consultation “Access to Land: changes to the Electronic Communications Code”, published on 24 November 2021

The UK government has announced plans to fine-tune the 2017 Electronic Communications Code “as soon as Parliamentary time allows”.

In January 2021, the government launched a consultation, “Access to Land: changes to the Electronic Communication Code” to look at how the new Code was operating in practice. It ran until the end of March and sought views on the main areas presenting hurdles to the UK’s commitment to improving its digital infrastructure and connectivity for all.

The framework of the Code enables registered telecoms operators to install and maintain telecoms equipment on private land, whether by consent or acquiring rights through applying to the Upper Tribunal for a Code agreement. These statutory Code rights are justified on the basis that everyone should have access to a choice of digital communications networks. Good connectivity has become even more important since the COVID-19 pandemic, but it requires the physical infrastructure to be in place to offer those networks.

Whilst the 2017 Code addressed some fundamental issues with its poorly-drafted predecessor, operators have reported delays and increased costs in acquiring the desired Code rights from site providers, who are often reluctant to grant them voluntarily. This is often aggravated by the lengthy and potentially expensive process of removing the operator from the land for redevelopment purposes, and the substantially lower rents which are payable to site providers as compared with the previous Code. Unfortunately for site providers, the statutory valuation scheme which results in those lower rents was not on the table for consideration under the consultation. Instead, the government sought views on three areas:

1. Obtaining and using Code agreements 2. Rights to upgrade and share apparatus 3. Expired Agreements

The perceived hurdles and the Government’s proposals to overcome them are summarised below:

Next steps

• As always, the detail of these proposed changes remains to be seen once the draft bill is published and it will require careful scrutiny in due course.

• It will also be interesting to see how the Supreme Court addresses the occupier issue in the Spring of 2022 in light of the government’s proposals to change the Code in this regard.