Do you have electronic communications equipment (eg telephone masts etc) on your land or buildings; or are you an electronic communications provider? If so, then you need to be aware of the changes to the Electronic Communications Code
The new Electronic Communications Code came into force on the 28th December 2017 and all agreements from this date will be governed by the new Code. The new Code is not retrospective and therefore existing agreements will continue to be governed by the previous Code subject to the transitional provisions in the new Code.
The key changes that landowners and operators need to be aware of are:
An operator can now assign its agreement without the consent of the landowner which means that the landowner will have no control over the choice of assignee. However, the landowner can require that on an assignment of the agreement the operator will enter into a guarantee to guarantee the assignee’s performance of the obligations under the agreement.
Any terms in an agreement that limit the ability of the operator to assign the agreement will be void.
If there is no more than a minimal adverse impact and no additional burden on the landowner, an operator may upgrade or share the electronic communications apparatus with another operator without the landowner’s consent.
A landowner will no longer be able to charge a site sharing fee or charge an increased rent when additional equipment is added to the site.
Upgrading is not defined in the Code and therefore it is not clear what is meant by upgrade and whether it includes a right to add new apparatus rather than just replace existing apparatus with more up to date equipment.
Any terms in an agreement which restrict the operator’s right to upgrade/share equipment will be void.
Termination and removal of equipment
The new Code makes the termination and removal of equipment procedure longer and involves a two-stage process. A landowner can only serve a termination of rights notice on an operator based on statutory grounds.
This will delay a landowner obtaining vacant possession and will require preparation and longer lead times for any redevelopment proposals.
Under a court-imposed agreement, the rent is calculated on the market value of the Code agreement and the valuation is on a “no-scheme basis” which does not take into account the proposed use. This will mean that a landowner will generally receive a lower rent. The rent received will be more aligned with the rents payable to other utility providers which was the intention of the Government.
Operators will no longer have the security of tenure afforded by the Landlord and Tenant Act 1954 in Code agreements (where the primary use of the agreement is to grant Code rights).
No statutory lift and shift rights
There are no statutory provisions in the new Code which allow the landowner to require that apparatus is altered or moved.
The aim of the Code is to strike a balance between the competing interests of landowners and occupiers, the telecoms industry and its customers, who want greater access to electronic communications services. Whether this aim is met remains to be seen.
Further Information and Legal Support
If you would like any further information or advice in respect of the Electronic Communications Code 2017 please contact a member of our Real Estate Team.
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