The Government published its response to the consultation on changes to the Electronic Communications Code on 24 November 2021.

It has proposed the following changes:

  • A new duty for operators to consider ADR, with potential costs consequences for parties who refuse to engage.
  • A new statutory requirement for all operators to have a complaints procedure.
  • A new process for use against completely unresponsive landowners whereby operators can apply to the FTT to impose Code rights for a maximum of 6 years.

  • A new distinct paragraph 3 Code right to “share” – this will be a ‘bare’ right so additional terms may be required to give it effect (e.g. rights of access).

  • A new automatic right for fixed-line operators to upgrade and share apparatus currently excluded from Paragraph 17 of the Code, provided the apparatus is situated under land and the upgrading/sharing has no adverse impact on the landowner. The right will be subject to prior notice provisions and for older apparatus will apply whether or not a current Code agreement is in place.

  • Changes are to be made to the Landlord and Tenant Act 1954 to ensure that the procedures for dealing with renewal disputes and the terms of any new Code agreement (including financial terms) are more closely aligned to Part 5 of the Code. Jurisdiction to deal with 1954 Act disputes is also being transferred to the First-tier and Upper Tribunal.

  • Changes are to be made to the definition of “occupier” so that if an operator exclusively occupies land, it will be able to obtain Code rights from the landowner (or whoever has rights to control the use of the land).

  • Where parties to an expired Code agreement are unable to agree terms for renewal and the matter is in court, either party will be able to apply for modified interim rights pending the resolution of the dispute. Parties will now be able to apply to modify any terms of a Code agreement, not just rent.

  • Changes enabling all Code disputes to be started either in the First-tier or the Upper Tribunal are to be brought forward. The Ministry of Justice and HMCTS will issue practice directions to ensure cases are dealt with at the appropriate level.

The changes are contained in the Product Security and Telecommunications Infrastructure Bill which had its first Reading in the House of Commons on 24 November 2021. We have yet to see the text of the draft Bill but will continue to monitor its progress with interest.