Changes to the Electronic Communications Code – Law Society response

The proposals

The Electronic Communications Code regulates the rights of telecommunications operators to install and maintain their apparatus on public and private land.

The Department for Digital, Culture, Media and Sport (DCMS) wanted to hear views on whether changes to the code can make sure that the UK has robust electronic communications networks to deliver the coverage and connectivity that consumers and businesses need.

The consultation identified three problem areas:

  • obtaining and using code agreements
  • rights to upgrade and share
  • renewal of expired agreements

Our view

This is a joint response from our Conveyancing and Land Law Committee and the City of London Law Society’s Land Law Committee.

The consultation focuses on the practical problems encountered since the introduction of the code by operators. It’s unusual for changes to important legislation to need to be made within three years of its introduction.

The government believes the code changes are needed to improve litigation procedures and ease the difficulties raised by site providers that block the progress of installing and keeping electronic communications apparatus on public and private land.

We welcome the government’s review of the code in light of these issues.

However, we’re concerned that the government’s proposals focus more on treating the symptoms of the problems encountered rather than examining their root causes.

We recognise the appropriateness of suggesting faster and more effective dispute resolution procedures but this does not address the causes giving rise to the prevalence of disputes between operators and site providers.

These difficulties have resulted from the aims of the 2017 code, which instead of achieving “an appropriate balance” have tilted the balance of rights too heavily in favour of operators to assist them in securing site facilities in practical terms.

The implied presumption in favour of operators has resulted in site providers being on an unequal footing when challenging decisions, with many reacting with obstruction, unwillingness to cooperate and litigation.

The code aimed for agreements on terms to be reached by negotiations between site providers and operators using an adapted version of the model procedure under the Landlord and Tenant Act 1954 rather than resorting to court procedures. This aim has not been achieved.

In our view, the code formulae interfere too much with market forces. Improvement of dispute resolution procedures and adjustment of some code provisions will only provide part of the answer.

What this means for solicitors

The changes are mainly relevant to commercial property lawyers.

A number of sections in the consultation are of greater interest to litigation solicitors than conveyancing solicitors and, as a result, fall outside the scope of the committees’ response.

Next steps

This consultation closed on 24 March 2021.

DCMS is analysing the feedback.

Read the consultation on the GOV.UK website

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