Following the enactment of the Digital Economy Act 2017, the new Electronic Communications Code came into force on 28 December 2017.
The Electronic Communications Code (the "Code") sets out the rights and obligations to be included in agreements between landowners and telecoms operators in respect of the installation and operation of telecoms masts. It replaces the pre-existing Telecommunications Code which has been in place since 1984.
The Code applies in full to all telecoms agreements completed after 28 December 2017 and in a modified form to telecoms agreements already existing on that date.
The Code makes a number of material changes to the pre-existing code including:
- Rent: The rent paid by the telecoms operator will be based on “market value” as defined by the Code. Under that definition, "real world" factors such as the availability of potential sites and the potential profitability of the site for the operator have been specifically excluded. This is likely to have the effect of significantly reducing the rent payable by operators especially where the underlying value of the land is low. The position may be rosier for landowners whose underlying land value is high or where there is development potential.
- Assignment, sharing and upgrading: Subject to very limited conditions, operators will have the right to assign the benefit of any agreement to another operator, share a mast with another operator and upgrade the apparatus without the landowner's consent. Any provisions within new agreements which seek to restrict these rights will be void. However, any such restrictions in subsisting agreements will still be enforceable.
- “Lift and shift": Unlike the pre-existing code, the Code does not provide expressly for landowners to be able to relocate apparatus.
- Security of tenure: The Digital Economy Act has amended the Landlord and Tenant Act 1954 to specifically exclude a tenant with Code rights from security of tenure under that Act. This will spare landowners from the requirement to contract out of the 1954 Act or having to deal with the termination of rights under both the Code and the 1954 Act. The right for telecoms operators to remain in occupation, however, is preserved in the new Code.
- Termination tights: The Code also replaces the pre-existing regime for terminating telecoms agreements. Landowners will have to serve 18 months’ notice on operators to terminate a Code agreement. The operator will have 3 months from the date of the notice to serve a counter notice stating that it does not want the agreement to come to an end. If the operator serves a counter notice, they then must apply to the court for an order that the agreement should continue. If no counter notice is served or application made then the agreement will come to an end following expiry of the 18 months’ notice.