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The new Electronic Communications Code

Much has changed in the world's digital landscape since the current Electronic Communications Code was introduced to regulate the relationship between landowners and communication network operators. Companies now rely on super-high-speed fibre optic broadband to keep apace of their competitors and consumers rely on an ever stronger bond to technology, particularly smartphones to communicate.

The current Code is undeniably outdated and the Government hopes to implement a new Code that will encourage greater investment in communication technologies and allow operators to expand their networks and provide better services. There is currently no fixed date for implementation of the new Code, but the Government has stated the intention to pass the necessary primary legislation "at the earliest possible opportunity". The new Code is widely viewed as representing a shift of power from landowners to the operators. The key changes for landowners are set out below.

Payment

The new Code will limit the rent that landowners can charge operators for the use of their land by the introduction of a "no scheme" valuation for rents, removing the ability for landowners to share the uplift in value resulting from the use of their land by an operator. Operators will instead be treated much more like utility companies, reducing the amount that they are charged and encouraging better network provision for the public.

Sharing and upgrading

The new Code will allow operators to upgrade equipment and share sites without landowner consent. This will mean that as new technologies become available, they can be easily implemented by operators. This will however represent a significant loss of control for landowners used to restricting and / or charging operators for any such changes.

Contracting out

Landowners have commonly sought to contract out of the current Code, or limit its application. This will no longer be possible and landowners will not be able to negotiate agreements that are more favourable than the provisions of the new Code.

Dispute resolution

The new Code anticipates that there will be a specialist tribunal to resolve disputes, rather than the initial recourse being through the Courts.

Implications for landowners

The new Code will only apply to agreements that come into place after the planned Digital Economy Bill comes into force as primary legislation.

Once the new Code is enacted it will be significantly harder for landowners to limit or prevent interruption and disturbance caused by operators requiring access to upgrade, and landowners will have significantly less control over the nature of the equipment on their land and the identity of the operator. The "no scheme" basis of valuation will mean that rents are likely to be lower and it will no longer be possible to contract out of or vary the Code.

Of course by allowing operators to house equipment on their land, landowners are themselves, in line with the aims of the new Code, furthering the provision of communications networks for the greater public good.

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240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

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