By Petra Billing, Partner and Rob Shaw, Senior Associate – DLA Piper (real estate)
The Electronic Communications Code (“Code”) provides statutory rights to telecommunications operators to install and maintain electrical communications apparatus in, over or under land. The principle of the Code is that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.
The Code is relevant to all operators, landowners and occupiers entering into agreements relating to the siting of telecoms apparatus on land.
Operators should consider their legal position carefully prior to entering into any agreements as they may inadvertently lose or give up certain legal rights, especially those relating to their ability to retain apparatus on land even where a landowner or occupier requires the apparatus to be removed or relocated.
The Code and other legislation (such as the Landlord and Tenant Act 1954) set out certain legal procedures that may need to be followed in relation to the recovery of land from an operator and an operator can ensure they are better placed going into any negotiations with a landowner or occupier by being aware of such procedures in advance.
Rights under the Code are split into 2 categories:
- The “general” category applies where an operator either: (a) obtains the voluntary agreement of the owner or occupier of the land to exercise their rights under the Code or (2) obtains a court order permitting this (essentially this route is used where the owner or occupier will not enter into a voluntary agreement).
- The “special” category applies to instances such as street works, overhead lines, tidal waters, railways, canals or tramways.
The Code has been subject to much criticism in the past as the way it is drafted has left a lot to be desired. It has famously been described by the courts as “not one of Parliament’s better drafting efforts….it must rank as one of the least coherent and thought through pieces of legislation on the statute book”!
This has resulted in calls for the Code to be reformed and the government was very recently close to introducing a new version of the Code via the Infrastructure Bill that is currently passing through Parliament. However, the government has now removed this revised version of the Code to allow for further consultation before it is implemented. The new code will have a direct impact on operators, who may want to consider any consultation opportunities that arise in order to try and influence the final version of the new code.
As regards case law, there is, unhelpfully, little case law providing guidance on how the Code should be applied and interpreted by operators and landowners/occupiers. However, the advice is to always seek assistance from lawyers with past experience of dealing with the Code.