The key changes to the Telecoms Code brought in by the Act (and effective when implemented by regulations) include:

1. Enabling operators to automatically upgrade and share apparatus which was installed prior to 2017 (pre-Code) whereas previously a new agreement under the Code would have been necessary.
2. A new procedure under Part 4ZA of the Act to allow operators to apply to have limited rights of access to land where an owner is unresponsive.
3. Amendments to the Landlord and Tenant Act 1954 to transfer jurisdiction over lease renewals of code agreements to the Tribunal, as well as altering the rent valuation mechanisms under 1954 Act renewals to assess rent by reference to the market value of landowners’ agreements to confer renewed Code rights.
4. Further amendment to the 1954 Act to remove an imbalance to the rent valuation mechanism under 1954 Act renewals, which previously avoided the ‘no network’ assumption under the Code (where any element of value attributable to the intention of the operator to use the site as part of its network is excluded from the rent calculation).
5. Streamlining the renewal of expired telecoms agreements.
6. Streamlining the timescale for Tribunal proceedings.
7. Active encouragement for Alternative Dispute Resolution to settle disputes before making an application to the Tribunal. The onus is on the operator to make landowners aware of this option and as with litigation under the Civil Procedure Rules the Tribunal will be required to take into account any unreasonable refusal to enter alternative dispute resolution when awarding costs.

To echo our comments from last year, the Act goes some way to bridge the gaps left between the old Code and the new Code as well as clarifying ambiguities in the Code, particularly in respect of its relationship with the 1954 Act. This should, in theory, reduce the amount of litigation and uncertainty in respect of Code agreements (we saw 3 Supreme Court decisions in 2022) but landowners are still likely to begrudge having their proprietary rights compromised with little in the way of compensation/rent from operators.

Client Alert 2023-003