We previously reported here on the key changes the Product Security and Telecommunications Infrastructure Act (the "Act") would make to the Electronic Communications Code (the "Code"). Some of these changes have now been brought into force, the most significant of which being the extended powers to share and upgrade underground apparatus. We set out here an overview of the most recent changes.
1. Rights to share and upgrade apparatus
At 7 February 2023, for all new Code agreements, the sharing of apparatus with other Code operators became an express Code right. Operators may also be granted express Code rights to access land and carry out works associated with the shared apparatus.
As of 17 April 2023, subsisting "old Code" agreements now also benefit from sharing and upgrading rights, but these are limited in that the new rights apply to underground apparatus only and, in exercising the right, there can be no adverse impact on the land and no additional burden can be imposed on any person with an interest in the land. Twenty-one days' notice must also first be given by an operator before exercising such rights.
The right to upgrade and share has also been extended to underground apparatus installed before 29 December 2003 regardless of whether an agreement exists. As with subsisting agreements, this right is limited, and its operation cannot cause adverse impact to the land nor impose additional burdens on any person with an interest in the land. Twenty-one days' notice must also first be given by an operator before exercising such rights.
2. Rights to fly lines from apparatus kept by another operator
At 7 February 2023, with the agreement of a main operator, another operator now has the right to fly lines from apparatus, including poles, which pass over land adjacent to where the apparatus is kept and to connect to that apparatus.
3. Refusal of application for Code rights on grounds of national security
Where an application is made by an operator to the relevant tribunal for Code rights and the Secretary of State makes an order that the granting of such Code rights is likely to prejudice national security, defence or law enforcement, the application for Code rights must be refused by the tribunal. This provision came into force on 26 April 2023.
Provisions not yet in force
We await further information on when the other changes to the Code will come into force. Some of the provisions that have not yet been introduced include a new procedure allowing operators to impose an agreement on an unresponsive site provider, provisions to encourage the use of alternative dispute resolution and regularising rental valuations in England and Wales.
Other legislative changes
The provisions of the Telecommunications Infrastructure (Leasehold Property) Act 2021 are now in force in England and Wales, and will come into force in Scotland on 1 July 2023.
The legislation expands the rights of operators to gain access to a building which contains two or more separate homes (i.e., a block of flats) without the landlord's permission, in a situation where the landlord has failed to respond to multiple written requests for access.
If you are an operator, site provider or landowner with concerns or queries about the Code or, how these recent changes in the law may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies contact.
