The New Electronic Communications Code

The New Electronic Communications Code was introduced as part of the Government’s “Digital Economy” agenda.

The New Code governs the grant of what are known as “Code Rights”. These include the right for an Operator to install, and to keep installed, electronic communications apparatus on, over or under the land, and to carry out various works on the land in connection with the apparatus.

Code Rights may be granted by a written agreement between the landowner and the Operator. That need not be contained in a lease: any written agreement, including signed heads of terms, could, in theory, grant Code Rights. Landowners should take care what they sign in order to avoid inadvertently granting Code Rights.

How Does the New Code Affect Landowners?

The New Code severely restricts the control that landowners will have over the apparatus kept on their sites. For example, any term in an agreement which attempts to restrict the upgrading or sharing of apparatus will be void. That includes terms which require the payment of additional sums, or which require the landowner’s consent.

Perhaps more importantly for landowners, the New Code allows Operators to apply to the Court for an agreement to be imposed on a landowner. If the prejudice that would be caused to the landowner by imposing an agreement is capable of being compensated in money, and the likely public benefit outweighs the prejudice to the landowner, the court may impose an agreement.

That power is likely to make it difficult for landowner’s to resist attempts by Operators to obtain Code Rights over the landowner’s property.

Although the New Code came into force at the end of 2017, it is not yet clear what effect it will have on telephone mast leases and other agreements covered by the New Code. One particularly unpredictable factor is the rents that will be achievable under the New Code, due to a newly introduced approach to valuations.

The New Code has not yet been tested by the courts. Landowners should make themselves aware of their rights and the rights of Operators under the New Code. For more information contact James Owen on 01935 315572 or james.owen@battens.co.uk.

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