Geoffrey Caesar, Solicitor

If you own or occupy land in the UK, you may have encountered the Electronic Communications Code (the Code). But what is it, and how does it affect your rights and obligations? In this blog post, I will explain the main features of the Code, its recent reforms and some practical examples of how it applies to landowners.

What is the Code?

The Code is a set of rights and obligations that apply to electronic communications network operators and site providers. It is set out in Schedule 3A of the Communications Act 2003 and was revised by the Digital Economy Act 2017. The Code allows network operators to install and maintain electronic communications apparatus (such as cables, masts, and antennas) on, under or over land, subject to certain conditions and safeguards. The Code also regulates the terms and conditions of agreements between network operators and site providers, including the payment of consideration (or rent) and compensation.

Why is the Code important?

The Code is important because it provides the public with electronic communications services (such as broadband, mobile internet, telephone, cable television, and landlines). These services are essential for social and economic development, especially in rural areas with limited coverage. The Code aims to balance network operators’ interests, who need land access to deploy and upgrade their networks, and site providers, who own or occupy the land where the apparatus is located.

How does the Code affect landowners?

As a landowner, you may be approached by a network operator who wants to use your land for installing or maintaining electronic communications apparatus. You may also have agreements with network operators with apparatus on your land. The Code affects your rights and obligations in both scenarios. Here are some of the main points you should be aware of:

• You can negotiate with network operators: You can enter into voluntary agreements with network operators to grant them Code rights over your land, subject to mutually agreed terms and conditions. You can also refuse to grant such rights if you wish. However, if you cannot agree with a network operator who requests Code rights over your land, the network operator can apply to the court for an order imposing such rights on you if certain conditions are met.
• You may receive lower consideration than before the revised Code was introduced in December 2017: The consideration payable by a network operator to you for granting or being bound by Code rights is based on the market value of your agreement to confer or be bound by Code rights, disregarding any additional value generated by the network operator’s intention to use the land for providing electronic communications services. This means that consideration is likely to be lower than under the pre-December 2017 regime, which was based on the land’s open market value.
• You may have limited control over upgrades and sharing: Network operators can upgrade or share their apparatus with other network operators without requiring additional consent from you or paying further consideration, as long as this does not impose an extra burden on you. This means that you may be unable to prevent or charge for changes to the apparatus on your land that do not materially affect you.
• You can terminate a Code agreement under specific grounds: You can terminate a Code agreement by giving at least 18 months’ notice to the network operator and specifying one of four grounds: (a) substantial breaches by the network operator; (b) persistent delays in paying consideration; (c) redevelopment of the land; or (d) no longer having an interest in or right to occupy the land. The network operator can challenge the termination notice in court if it disputes the ground or wishes to renew the agreement.
• You can require removal of apparatus after termination or expiry: You can require network operators to remove their apparatus from your land by giving at least 18 months’ notice. The network operator can either remove the apparatus or seek a new agreement or a court order to retain it. If the network operator fails to remove its apparatus within a reasonable period after termination or expiry of a contract, you can sell, use or dispose of it.

Where can I find more information?

If you want to find out more about the Code, you can visit the following websites:

• Ofcom
• Law Commission
• Government

Alternatively, you can contact me for professional advice. I have specialised in telecommunications for many years, alongside my broader solicitor’s practice. I can advise on all areas of telecommunications law.