The Electronic Communications Code came into force on 28th December 2017, replacing the pre-existing Telecommunications Code.
The new Code will apply to any agreements completed after 28th December and may also affect existing agreements.
The Code amends the pre-existing Code in various ways:-
- The way rent is calculated will be based on the “market value” as defined by the Code. This is likely to affect landowners particularly if their land has a low value, then the rent they receive could be significantly reduced. Alternatively, if the land has a higher value and/or has potential for development, then they could benefit from an increase in the rent.
- Operators will also be able to assign the agreement and/or share the equipment with another operator and upgrade the equipment all without the landowner’s consent. Any restrictions in subsisting agreements will however still be enforceable.
- The new Code does not provide for landowners to be able to relocate apparatus.
- The Landlord and Tenant Act 1954 now excludes a tenant with Code rights from security of tenure under that Act. This therefore spares landowners from the requirement to contract out the 1954 Act or having to deal with the termination of rights both under the Code and the 1954 Act. However, the right for operators to remain in occupation is preserved in the new Code.
- One of the biggest changes under the new Code, is the revised termination and removal process. Under the previous Code, landowners are required to give operators 28 days’ notice if they want to terminate a Code agreement. The new Code requires a much longer period – operators must be given 18 months’ notice to terminate a Code agreement.
In addition, in the new Code “termination” is not the same as “removal”. Landowners must serve a further notice specifying what they believe to be a “reasonable” period for removal of the apparatus. Taking into account the possible court delays and the time needed for the operator to safely decommission and remove equipment, it could take up to two years (if not longer) for landowners to recover their land free from equipment. This needs to be considered carefully by potential developers.
The electronic communications code cannot be applied to all existing telecoms agreements – there are some complex transitional provisions to consider with both existing and new agreements. Landowners must continue to take specialist advice on any agreements which may or may not fall within the new Code. This is particularly significant when trying to ensure that Code agreements are properly brought to an end in order to obtain vacant possession – a process that has to be managed carefully.
For more information on the electronic communications code, contact Stephen Lunt
Contact Stephen Lunt