BUILT ENVIRONMENT JOURNAL

The Electronic Communications Code: the implications of the 2017 reforms

The Electronic Communications Code gives telecom providers legal rights to place their equipment on land or buildings owned by another person or organisation

Author:

Daniel Felgate

08 September 2020

Building surveying

Technology

In the UK, the demand for telecommunications infrastructure has increased exponentially over the last two decades. According to Ofcom official statistics, there were 26.8 million fixed broadband lines at the end of 2019 versus 19.5 million at the end of 2010, roughly equating to a massive 72 per cent rise in fixed broadband services over the nine-year period.

Digital connectivity is essential for enabling productivity and economic growth through affordable content, services and applications. This has been made even clearer by the COVID-19 outbreak and our dependence on technology.

The Electronic Communications Code (the Code), first set out in Schedule 3A of the Communications Act 2003, provides telecom providers with legal rights to place their equipment on land or buildings owned by another person or organisation.

Code reforms

In December 2017, the Code was reformed under the Digital Economy Act in order to meet the increasing and critical needs of local communities – and the UK economy as a whole – to have access to a high-speed broadband connection and a 4G or 5G mobile connection. According to the regulator Ofcom’s code of practice, the changes reflected the public's interest and would make it more straightforward for telecom providers to gain access to the location they need, to improve coverage, capability and capacity.

Essentially, the Code now tips the balance in favour of telecoms providers wanting to roll out or upgrade their services. The changes also mean providers are now able to assign their rights to another provider without the landowner’s consent.

In addition, the new Code changed the basis of valuation to a ‘no scheme approach’ bringing them more in line with payments made for other utilities and basically reducing rents for telecom operators. This means there is little incentive for landowners to permit a telecoms provider to install equipment on their land.

Since December 2017, there has been a surge in legal disputes as landowners, telecoms providers and the courts come to terms with the question of how it operates in practice. Now that the coronavirus pandemic has highlighted the vital role that telecoms providers play in ensuring communities remain connected, we are likely to see many more code rights being exercised and agreements being finalised over the coming months and years.

Ahead of the curve

Technical due diligence (TDD) requires that chartered building surveyors properly appraise a building. More than that, TDD is a key risk-management tool to help identify not only the opportunities but also the barriers of a client’s investment today and in the future. But when it comes to the planning, installation and maintenance of telecoms equipment in accordance with the Code, there has been a distinct lack of surveyor input.

Complaints about telecoms providers damaging land or property while installing or repairing infrastructure or telecommunications are becoming increasingly common. A perfect example of this is a multi-storey office block located in Essex that suffered roof leaks as a result of poorly installed equipment that had not been monitored during construction. At Hollis, we were tasked with subsequently surveying and repairing the damage as a matter of urgency in order to protect the asset. Our client had no idea it was linked to telecoms equipment until we had inspected and we undertook the repairs in order to stop the leaks which was the immediate priority.

For landlords looking to future-proof their portfolios – and even providers looking to accelerate the widespread rollout of telecoms infrastructure – this really misses a trick. As surveyors, we need to be proactive not reactive when it comes to the Code and advise clients on a number of related factors.

At the very least, this includes identifying the presence of equipment such as masts and antennas, or if a property or land is earmarked as being a potential installation site, and what that means for a landlord or landowner. There is currently no database which shows potential installation sites, so each plot or building needs to be looked at on a case-by-case basis, taking into account factors such as height, square footage, any planning applications or signal blackspots.

Once the Code rights have been exercised by a telecoms provider, surveyors need to bridge the gap between landlords and operators by providing the technical know-how to ensure that the installation and maintenance of equipment doesn’t adversely impact the landowner’s property. And because newer 5G equipment is much larger and heavier than ever before, the structural implications, such as those on roof leaders, need to be closely assessed.

In addition, and perhaps most importantly for landowners or landlords with development plans, arranging for the removal of telecoms equipment can impose significant cost and delay to a development.

"Complaints about telecoms providers damaging land or property while installing or repairing infrastructure or telecommunications are becoming increasingly common"

Lengthy removal procedures

The procedure for the removal of Code-protected equipment is a lengthy one. To begin the process a landowner or landlord must first give at least 18 months’ notice to the telecoms provider citing the grounds on which the Code agreement should come to an end and the end date. An agreement will terminate on the date stated in the landowner’s notice, unless the operator serves a counter-notice within three months of the landowner’s notice and then applies to court for an order.

After securing the right to remove the equipment, the next step in the process relates to the actual removal of the equipment and the provider’s making good of the land within a reasonable period of time. The landowner or landlord can make a series of applications to the court for an order which requires the removal of the equipment and the restoration of the land, or permits the landowner or landlord to remove/sell the equipment.

In light of the current disruption resulting from the COVID-19 pandemic, it has become apparent that an integrated and rigorous approach to mitigating risks and potential liabilities will be standard practice moving forward. As surveyors, we can play a vital role in cracking the Code so that landlords and telecoms providers are communicating more efficiently and acting with purpose – a benefit to everyone involved.

Daniel Felgate is a senior associate at Hollis

daniel.felgate@hollisglobal.com

Related competencies include: BIM management, Data management, Inspection, Legal/regulatory compliance

The Code and RICS

The electronic communications sector has witnessed a dramatic evolution both in terms of the development of new technologies and the demand for services. This has resulted in a profound shift in the way electronic communications are deployed, accessed and used.

The new Code was designed to facilitate the delivery and maintenance of high quality digital electronic communications infrastructure and to accommodate future technological development.

It regulates the relationship between electronic communications network operators, infrastructure providers and site providers throughout the UK and provides a statutory framework for establishing agreements to place, operate and maintain electronic communications apparatus on land and property.

The government's objective is to achieve the right balance of interests between site providers, electronic communications providers and, most importantly, allowing the public to access a choice of high-quality electronic communications services infrastructure.

RICS has actively engaged with the government on telecoms policy issues, the Upper Tier (Land Tribunal) and the telecoms industry through the RICS telecoms advisory forum, and in November 2019 released their first guidance note.

The aim of this guidance note is to highlight the main factors that may influence or impact the variety of roles a surveyor may be called on to perform within this environment.

Given the dynamic nature of the industry, it is not intended to provide an exhaustive body of guidance but to identify the main issues likely to arise. It also provides a framework that surveyors can refer to when advising their clients in relation to electronic communications networks and installations that fall under the scope of the Code.

James Kavanagh is RICS’ global land standards director

jkavanagh@rics.org