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It was less than five years ago that the Electronic Communications Code (the Code) came into force, but plans for reform are already making headway, with the Product Security and Telecommunications Infrastructure Bill 2021-2022 set to become law later this year.

Authors: Brad Trerise

The Code, as it currently stands

The theory behind the Code was to ensure the UK was equipped for the ‘digital age’, by enabling telecommunications operators to provide the public with “a choice of high quality electronic communications services even if it does so at the expense of landowners.

Under the Code, operators can apply to the Upper Tribunal for an order imposing an agreement to install equipment on the land of an owner where the owner has no desire for any such agreement and even where such agreement may detrimentally affect the value of the owner’s premises. In addition to this, it is difficult for owners to remove telecoms equipment from their premises, with at least 18 months’ notice required to be given to the operator. Owners must also rely on one of four grounds under paragraph 31 of the Code in order to give notice to terminate a telecoms agreement:

  1. Substantial breaches by the operator of its obligations under the agreement
  2. Persistent delays by the operator in making payments to the site provider under the agreement
  3. Intention by the owner to redevelop all or part of the land covered by the agreement and could not reasonably do so unless the agreement comes to an end
  4. The operator is not entitled to an agreement as it cannot adequately compensate the owner for damage caused by the operator or if the public benefit of having apparatus at the premises does not outweigh the detriment to the owner

The above grounds mirror some of those under section 30(1) of the Landlord and Tenant Act 1954, and there are clear parallels when it comes to caselaw, too. For instance, in the 2019 case of EE Ltd and Hutchison 3G UK Ltd v. Sir James HE Chichester & Others, an owner sought to oppose an intentional redevelopment, and they applied against EE for a telecoms agreement to be imposed on the basis that it intended to redevelop the land. The Tribunal applied the test set out by the Supreme Court in S Franses v. Cavendish Hotel (London) Ltd [2018] that the owner had a genuine, firm, settled, and unconditional intention to carry out the works and would do so even if the operator left voluntarily. In the end, the Tribunal determined that the works (which partially related to designing new telecoms masts at the premises) were designed to prevent the operator from occupying the premises, and, as such, the owner had no genuine intention to carry out the works.