17 October 2019

Electronic Communications Code update: Uncommunicative landlords could face early Tribunal proceedings

The government’s policy proposal to improve digital connectivity and roll out 5G in the UK means that Ofcom operators are requiring increased access to potential network sites to facilitate the development of digital infrastructure.

Following a recent consultation, it was announced on 10 October 2019 that the government will be amending key legislation, the Electronic Communications Code (‘the Code’), to allow operators to ask the Tribunal to grant them interim rights to access properties and install and/or maintain existing digital infrastructure for a limited period where a landlord has continually failed to respond to its requests.

Currently the Code requires operators to obtain Code Rights either from the landlord by agreement, or by application to the Tribunal, if it wishes to gain access to a potential site or install/maintain infrastructure upon it. In either event the Code requires formal notices to firstly be served on the site owner, notifying them of these intentions, which may be ignored by that owner.

The consultation highlighted in the landlord-tenant scenario this can be of particular detriment to tenants, who have no control of this process.

It is intended that these amendments will incentivise landlords to respond to operators’ requests for access as well as supporting tenants’ rights to access the new high quality networks.

The process will allow operators to escalate the matter to the Tribunal where a landlord repeatedly fails to respond to requests where the following conditions are met:

  • a tenant is requesting a communications service be provided;
  • the operator is unable to accede the tenant’s service request without the landlord agreeing to grant it rights and it has unsuccessfully sought those rights from the landlord;
  • the landlord has repeatedly failed to respond to formal notices seeking those rights given by the operator. 

The route will not be an option where a landlord provides a substantive response to the operator.

The government will continue to consult on the terms of what these interim agreements should contain including whether there should be restrictions on an operator’s right to access land only to certain times, the manner in which it may carry out installation or maintenance works and requirements regarding the insurance required to be in place.  We await further updates when the new legislation is announced.

For the time being, the consultation outcome highlights the increasing importance of landlords seeking prompt and early legal advice if they receive an access request from an Ofcom operator, as the potential scope of adverse and costly consequences if they fail to do so has increased.

Our Telecoms team is always pleased to have an initial discussion with any property owner who has been approached by a network in relation to the siting of communications apparatus on their property or who has an issue with equipment already installed. To discuss this further, or to arrange a meeting, please contact a member of our experienced team.