The Electronic Communications Code, set out in Schedule 2 to the Telecommunications Act 1984 and amended by the Communications Act 2003, has been much criticised over the last 30 years for being unclear, out of date and inconsistent with other legislation. The Code was introduced following the privatisation of British Telecom in the mid 1980s with a view to enabling electronic communications providers to construct their network infrastructure and to obtain rights over private land, in the absence of agreement with the landowner, on application to the County Court.

In early January 2015, the Government proposed some last minute amendments to the Infrastructure Bill (now the Infrastructure Act 2015) which would have introduced a new Code. However, on 22 January, the Government withdrew the proposed amendments to allow more time for consideration of the proposals.

At the end of February, the Department for Culture, Media and Sport (DCMS) issued a consultation document seeking views on reforming the Code with the stated aim to “promote network connectivity, expand coverage and take into account the legitimate interests of all parties." The consultation closed on 30 April and the DCMS is now considering the responses received.

The British Property Federation (BPF) has recently published its response to the consultation. On the whole the BPF is highly supportive of the draft revised Code, but it has highlighted a number of areas where, in its view and in the view of its members, the draft Code should be improved. The BPF’s concerns focus around the following issues:

1. Contracting out – while the draft Code suggests that it should not be possible for landowners and operators to contract out of parts of the Code, the BPF’s view is that the parties should be free to contract out generally to ensure that landowners are willing to accept installations on their properties without fear of affecting future development plans.
2. Valuation – the BPF is concerned that the provisions in the draft Code allowing the Secretary of State to change the basis of valuation for telecoms sites to facilitate expansion of networks in current “not-spot”¹ areas could result in reduced or “no scheme” valuations becoming the norm and this is likely to result in landowners being deterred from entering into Code agreements generally.
3. Sharing and upgrading – the BPF supports the rights of operators to share and upgrade their apparatus but is concerned that the Code does not allow sharing arrangements to be reflected in the calculation of market value for setting the rent payable by operators. The BPF has also suggested that any changes to the appearance of apparatus as a result of sharing or upgrading should require the landowner’s consent. The draft Code provides that no consent is required where there is “minimal adverse impact” on the appearance of the apparatus but the BPF feel that this wording is unclear and likely to cause issues in practice.
4. Consistency with Landlord and Tenant Act 1954 – the BPF is concerned that the notice period of 18 months required to bring an agreement under the Code to an end is out of step with notice periods required to bring a lease to an end under the Landlord and Tenant Act 1954. They have also recommended that the period for service of a counter-notice and application to court by the operator should be reduced from 6 months to 4 months so as to minimise delays and the impact on development.

5. Land Registration – the BPF have recommended that Code rights should be protected by registration at the Land Registry rather than by the creation of a new overriding interest. This approach is consistent with the Land Registry’s desire to reduce the number of overriding interests.

The DCMS’s response to the consultation is expected over the summer and we await with interest their proposals for addressing the often competing concerns raised by stakeholders such as the BPF. Whatever the outcome, it is likely that the revised Code will be an improvement on the current position and will no doubt be welcomed by all.