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02nd February 2021

Recent case demonstrates Extensive Rights of Operators under the Electronic Communication Code

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Landowners need to be aware of the extensive rights of operators under the 2017 Electronic Communications Code on lease renewal as demonstrated by a recent case. 

Given the spate of tribunal and court decisions since the adoption of the Code (of which this is the latest), it should be no surprise that the Government has launched a consultation on it with a view to making it more robust.

In this case under a lease granted in 1999 an operator had installed a telecommunications mast and other equipment on a site located on an estate within a national park. Following the expiry of the lease in March 2019 the operator applied for an order imposing a new lease under the Electronics Communications Code 2017 (“the Code”). Whilst the landowner accepted the operator had a right to a new lease it objected to the operators request for unlimited rights to install, upgrade and share apparatus on site.

Paragraph 21 of the Code provides that the Upper Tribunal may impose an agreement under paragraph 20 conferring code rights on an operator and occupier in the event that both of the following conditions are met :-

  • The prejudice caused to the relevant person can be adequately compensated by money.
  • The public benefit likely to result from the order outweighs the prejudice to the relevant person. In considering this, the court must have regard to the public interest in having a choice of high-quality electronic communications services.                                              

If the court orders an agreement, it can also order the operator to pay compensation for any loss or damage sustained by the occupier.

Paragraph 17 of the Code entitles an operator to upgrade its electronic communications apparatus and share it with another operator if any changes to the apparatus on site have no, or no more than a minimal impact on its appearance, and no additional burden is imposed on any other party to the agreement.

The Upper Tribunal held that the test under paragraph 21 was met. They came to the conclusion that any prejudice suffered by the landowner in granting the operator unlimited rights to install and upgrade apparatus could be adequately compensated by money.

The landowner in this case had the protection of stricter planning controls by virtue of the land being situated in a national park. It was also fundamental to the operator to be able share its apparatus as it was a wholesale infrastructure provider. As technology advances and public demand for services increases it is inevitable that operator will need to make changes to its existing apparatus.

The Government has launched a consultation proposing making changes to the Code including the operators rights to upgrade and share with a view to making life even easier for operators. Given the number of court and tribunal decisions that have arisen since the adoption of the Code this should be no surprise. The consultation period closes on 24 March 2021. To respond click here.

Following the consultation, I suspect we will find out the proposed changes in the form of a government white paper.

For further information or assistance please contact Stuart Simoes on 020 4526 4987 or click here to email him.