On 27 April 2017 the Digital Economy Act came into force. This replaces the existing Electronic Communications Code. The new code is not retrospective and will only govern new agreements in relation to telecommunications equipment. The salient changes are as follows:
- Telecommunications operators can upgrade apparatus and share it with another operator without the landowner's consent (provided there is minimal adverse visual impact);
- Telecommunications operators can assign code agreements to another operator without the landowner's consent (although the landowner can require a guarantee similar to an AGA from the outgoing operator);
- Private arrangements excluding the provisions of the code will not be enforceable;
- Compensation to landowners will be treated in a similar way to Compulsory Purchase Order compensation rather than being linked to the open market;
- After years of uncertainty it has been confirmed that the Landlord and Tenant Act 1954 does not apply to telecommunication agreements and they are not therefore eligible for security of tenure or compensation under the Act. As under the previous legislation, a telecommunication agreement will remain in place even after the date of termination until positive action is taken by the landowner to take back possession of the site.
Who benefits from the new code?
Operators will be happy, they will not require consent from the landowner to upgrade or share apparatus, or assign their agreements, and it is also likely that the new compensation assessment will result in lower payments being due to landowners.
Landowners will be less happy. In addition to receiving less compensation, they will have less certainty as to who is on their land, this could cause delays when seeking to have the equipment removed for development. There is something positive for landowners to take away from this in that we finally have confirmation that the Landlord and Tenant Act 1954 does not apply and the procedure on how to terminate a telecommunications agreement is now clear under the provisions of the new legislation.