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A network of masts, cabinets, poles and fibre routes is all built on land that telecoms companies don’t necessarily own. For farmers, landowners and those who occupy commercial property, what happens if a telecoms operator wants to go onto that land? Are they free to start installing the kit? The answer is they can, thanks to the Electronic Communications Code (the “Code”), which provides statutory powers – but not unlimited ones – for operators.
What is the Electronic Communications Code?
The existing Code (as it was contained in Schedule 3A to the Communications Act 2003) was amended in 2017 to facilitate more rapid deployment of new mobile and broadband networks. It gives eligible operators “Code rights” to carry out the set up, inspection, maintenance, upgrade and sharing of electronic communications apparatus on land. Any company with these rights must first register as a Code Operator with Ofcom.
Do Operators Need the Landowner’s Permission?
In the first place, yes. The operators are not permitted to just come onto private land without consent. They will need to find the landowner/occupier and agree to access for a lease or wayleave agreement, which will specify the location, term of the installation and the way in which it will be used. This approach is the usual starting point for site access – direct negotiation, preferably assisted by professional advisors.
Yet the code decisively tilts the scales in the operator’s favour if the landowner resists. If they cannot reach an agreement, the operator can seek to have one forced upon the landowner by the Upper Tribunal (Lands Chamber). The tribunal balances the public interest of maintaining and developing communications networks on the one hand, and the landowners’ private property rights on the other.
Rights to Test, Install, Maintain and Upgrade
Upon the acquisition of the right, Code operators have the strength to do the following:
- Equipment Testing & Land To obtain land for equipment testing and sampling.
- Server / Telecom Install, maintain and store for example:Carbon Accessories Cabinets and their Cabies Mastand, their Cabinets and their Cables.
- Visit the site to assess, maintain or upgrade existing infrastructure
- Share equipment with, or cede any agreements to, other operators
Importantly, following new powers granted by the Product Security and Telecommunications Infrastructure Act 2022, where equipment was installed prior to 2017, operators can enhance and share that equipment without obtaining fresh agreement from the landowner and without the landowner having to agree to any further payment for sharing.
What Landowners Should Watch For
As the Code now leans more in favour of the operators, landowners must treat the agreements with the same level of seriousness they would have done in the past. Whether the rent is calculated on a no-scheme basis (as the Code now uses this will give a lower rent than open market), the length and renewal of the agreement, and removal rights once the lease expires will all be material considerations. Agreements previously entered into (under the old 2016 regime) may also be subject to different renewal rules, so check which part of the Code applies.
The 2022 reforms also saw an easier court process by which operators could seek temporary rights where the landowner was not engaged, as well as a real effort to drive the use of dispute resolution mechanisms instead of protracted tribunal hearings.
Getting the Right Advice Before You Agree to Anything
Operators have so much legislative muscle over landowners under the Code that entering into a wayleave on their own is never recommended. Landowners can get tied into a wayleave that leaves them with a below-market lease for years to come, limited control over future use of the site and difficult-to-understand removal rights. Operators, meanwhile, need a wayleave that is clear, lawful, and fit for purpose in the long-term planning of the network.
If you are a landowner receiving a first approach from a network operator, or an operator negotiating an individual site agreement portfolio, knowing exactly what is and is not permissible under the Electronic Communications Code is vital before any lease is signed.
