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1st May 2018

The 2017 Telecommunications Code

The 2017 Telecommunications Code – What do you need to know?

Landowners and operators need to be aware of a change to the telecommunications code warns Lisa Steer, associate in the real estate team at Cripps. The telecommunications code gives licensed telecoms operators statutory rights to place and keep equipment on private land. The 2017 Code (which came into force on 28 December 2017) is contained within the Digital Economy Act 2017 and replaces the 1984 Code which has been considered outdated for some time now. It reflects the need to stay up to date with the modern world and the ever increasing need for access to a solid communications network for both individuals and businesses. However, changes will also have an impact on those landowners where telecommunications equipment is based. Both landowners and operators need to be clear on the new Code in order to consider the impact it will have on existing and new agreements. The Code governs the grant of “Code Rights” to operators. These include installation of electronic communications equipment and ongoing rights of maintenance, upgrade and renewal, entry to land and carrying out works on land in connection with maintenance and renewal. The Code Rights must be used for the purpose of providing the operator’s network and if not acquired by entering into a written agreement with a landowner, can be imposed by court order. What are the main changes? • Assignment and sharing o Operators are free to share use of the apparatus with other operators without consent of the landowner. • Upgrading o Operators will have the right to upgrade equipment without consent from the landowner, providing there are no adverse impact on the physical appearance and no additional burden on the landowner. Any attempt to restrict the right to upgrade equipment will be void. • Termination o If landowners wish to terminate an agreement, they need to follow specific notice procedures. This is another main change that landowners should be aware of as the notice period has been extended significantly. o There are still provisions in the Code dealing with termination of agreements for example, in the event of breaches by the operator or intention to redevelop. o The Code provides that the rights will continue even when the term of the written agreement comes to an end. o Removal of apparatus is now dealt with separately to termination. There are set procedures in place for serving notices strictly relating to requiring an operator to remove apparatus. o The right to security of tenure under the Landlord and Tenant Act 1954 cannot be excluded from a lease with an operator where the lease is primarily for the grant of Code Rights. • Valuation o Consideration must be assessed as the sum representing the market value of the agreement to grant the Code Rights. • Avoiding the Code o Any attempt to contract out of the Code in a written agreement will be void. Therefore where any provisions in an agreement that conflict with relevant provisions of the Code, the Code will overrule whatever has been agreed in the written agreement. There is a still a lot of uncertainty on how the new Code might affect agreements between operators and landowners. For example, it is unclear whether specific Code Rights need to be granted in individual agreements or whether operators will automatically be entitled to all the Code Rights by virtue of being granted the overall right to have the equipment on the land. Landowners need to make sure they fully understand the implications of the new Code before entering into negotiations with operators, and where operators are already in occupation so they can properly consider the impact of the new Code when making plans for their property. For more information, and to discuss how this may affect you, contact Lisa Steer on lisa.steer@cripps.co.uk or 01892 506 358.