Phone masts Code needs revisiting as disputes with landowners slow progress - Scott Logan

With the shift to working from home, the importance of digital communications and connectivity has never been more to the fore, and the speedy roll-out of full fibre broadband and 5G networks is viewed by government as critical to the economic recovery.

Achieving that roll-out, which inevitably involves the use of masts on private and public land, has caused a disconnect between landowners and telecoms operators. It is hoped some issues can be addressed through further reforms to the legal framework.

The Electronic Communications Code (the Code) underpins telecoms operators' rights to install and operate equipment on public and private land. It was substantially changed in 2017, with the aim of improving connectivity by making it cheaper and more efficient for operators to deploy and maintain infrastructure. One 2017 change was a new valuation regime, intended to reduce site costs for operators, to enable them to focus investment on networks and improving connectivity. The flip-side was that it reduced the amount of money offered to landowners to host the equipment. Since then, there have been a series of court disputes about the workings of the Code, with landowners reluctant to enter into, or renew, agreements.

Recent court decisions north and south of the border have assisted in some respects, by clarifying the extent of operators' statutory powers and what payments can be expected for different types of property (e.g. urban roof space or rural greenfield sites). However, they have also highlighted shortcomings in the Code. The UK Government is now consulting on further changes to the framework.

So what do the proposed changes look like? While acknowledging the valuations issue, the current consultation does not revisit that particular part of the 2017 Code, and instead focuses on addressing other problem areas.

Obtaining and using Code agreements

The first relates to the negotiation and use of Code agreements. A lack of engagement and collaboration on both sides is causing a delay in concluding agreements and therefore deployment, with regular reports that the Ofcom Code of Practice, setting out expected standards of behaviour, is not being complied with.

There are also issues with who can grant Code rights as 'occupier', in particular where a telecoms operator is already occupying the land, and completed agreements are not sufficiently flexible to accommodate changes in circumstances during the agreed period.

The consultation proposes changes to support faster and more collaborative negotiations, to ensure best practice is followed and to provide efficient ways for resolving disputes.

Rights to upgrade and share apparatus

The second area proposed for reform relates to upgrading and sharing apparatus – both believed to hold significant benefits for connectivity by reducing costs and increasing the number of operators in given areas.

The 2017 reforms introduced automatic rights for operators to upgrade and share apparatus where certain conditions could be met.

However, disputes about the extent and operation of those rights are further undermining the relationship between operators and landowners and, as the automatic rights only apply to agreements completed after the 2017 reforms, there remain limits on the upgrade and use of existing sites.

The current consultation proposes to review when automatic rights should be available and clarify the position where operators require more extensive rights. Consideration is also being given to the introduction of limited retrospective rights to upgrade and share use of equipment installed prior to the 2017 reforms, but in a way that adequately protects landowners.

Renewal of expired agreements

Finally, the consultation looks at the provisions of the Code for dealing with termination and renewal of agreements, noting a lack of clarity and consistency about when these provisions apply and what should happen when they do not. It notes the longer time periods that apply for renewal disputes to reach a tribunal hearing than is the case with other disputes relating to the Electronic Communications Code.

Participants have until 24 March to feed their views into the consultation. The consultation has been welcomed by the telecoms industry which has been pushing for further change. Whatever happens next, greater clarity, consistency and certainty on the framework and expected behaviours is needed, to help operators and landowners move forward.

Scott Logan is a Managing Associate, Brodies LLP