In July 2018, the Government published its Future Telecoms Infrastructure Review examining the state of the UK telecoms market and its importance to the UK’s future economic growth. The review identified that operators face significant difficulties in providing electronic communications services to blocks of flats or apartment buildings, as they require the landlord’s permission to access the building and are unable to provide a connection to an occupier who is requesting a service without access rights being granted. The Review estimated that landlords do not respond to operator requests in up to 40% of cases.
The Telecommunications Infrastructure (Leasehold Property) Act 2021 has now been introduced with the intention of providing a process for operators to gain access to multiple dwelling buildings (being buildings which contain two or more sets of premises which are used as, or intended to be used as, a separate dwelling, such as a block of flats or apartments) to install, upgrade or maintain its equipment where the tenant in occupation has requested an electronic communication service but the landlord has repeatedly failed to respond to the operator’s requests for access. In this way, the 2021 Act amends the 2017 electronic communications code (“Code”).
The effect of the 2021 Act is that, if a tenant is in occupation of a flat or apartment in a block and requests that an operator provides electronic communication services to its property, and, in order to provide these services to the tenant, the operator requires a landlord to confer (or be bound by) Code rights in respect of its land, then the operator can serve a “request notice” on the landlord.
If the landlord fails to respond to the request notice then the 2021 Act provides for an application process of six weeks which if, following the subsequent service of two warning notices and a final notice on the landlord by the operator, no response is received, the operator may make an application to the Upper Tribunal for an order imposing interim Code rights. Where the Upper Tribunal is satisfied that the application requirements have been met and the landlord has not objected to the making of an order, it may make an order imposing interim Code rights.
An operator will be unable to use the procedure introduced by the 2021 Act where a landlord agrees or refuses, in writing, to grant the rights sought by the operator or acknowledges the operator’s request in writing.
Any interim Code rights granted following such an application will last for a maximum of 18 months. To extend the Code rights beyond this period, either the operator and landlord must reach agreement or the operator will need to apply to the Upper Tribunal for the imposition of a Code agreement under Part 4 of the Code.
Where interim Code rights are granted, the 2021 Act provides that The Upper Tribunal may, upon an application by the landlord, order the operator to pay compensation for any loss or damage that has been, or will be, sustained as a result of the exercise of those rights.