The Electronic Communications Code – Practical Considerations

The Electronic Communications Code (the Code), which governs UK law in relation to Telecommunication sites, came into force on 28 December 2017 and gave statutory powers to operators to install apparatus on, over or under land, and thereafter to maintain apparatus.

Changes were then made to the enhance/clarify the Code with the introduction of the Product Security and Telecommunications Infrastructure Act 2022, which received Royal Assent in December 2022. This Act gave operators an express right to upgrade and share telecoms apparatus with other operators, along with rights for operators to access land to carry out works required for sharing and upgrading in certain circumstances. It also provided the operators with new powers, if the site provider failed to respond to repeated notices served by the operator, and it added provisions to encourage landowners and operators to try to reach agreement on disputes through alternative dispute resolution rather than through the relevant Tribunal. This is a snapshot, but operators are getting more powers to do their work.

When it comes to practical issues, we often receive queries. Here is some general information which is true at the time of writing – February 2024 – but the law in this area is rapidly changing and we highly recommend you consult an expert should an issue arise.

I have a mast on my land. Can I refuse to enter into a new agreement?

Crucial to this, is the basis on which the current agreement is operating. If the term of the original agreement has expired and the agreement is continuing by what is called ‘tacit relocation’ the operator will probably want to seek agreement with you to enter into a new agreement at the end of the tacit relocation period. If the term of the existing lease hasn’t expired, the operator may well be able to seek to modify the agreement under the Code.

If you are approached by an operator in relation to an existing site, we encourage you to take legal advice before entering negotiations. You need to know what rights and obligations you have before you start.

I have plans to or may decide in the future to develop my land

If there are immediate plans to develop or redevelop the land, you as landowner, cannot be forced to enter into an agreement. However, if development is something you may wish to do in the future but you have no specific plans at the point the agreement is being considered, the operator will have the upper hand, as they could have an agreement imposed upon you. In negotiating the new agreement, you should agree with the operator, that terms such as a break clause for development are written into the agreement. This is usually permitted at a certain anniversary of the start of the term. In addition, you will want to try to ensure that statutory compensation clauses are included to cover any reduction in the value of your land and protect your position.

How can I terminate an agreement?

A landowner can only terminate an agreement in terms of the Code by serving a written notice which must give at least 18 months’ notice, which period must end after the term in the agreement has passed. The landowner can only terminate the agreement in very limited and specific grounds. In essence it is possible if there have been substantial breaches of the agreement by the operator; or in some circumstances if landowners want to redevelop or if the operator no longer meets the test set out in the Code for a court to impose an agreement. However, an operator can serve a counter notice to continue the agreement, and if the parties do not agree the operator can then apply to the Lands Tribunal for an order.

Conclusion

The key messages are these. The Code makes the operators’ position strong. This is a complex area of the law now, with cases arising. If you as a Landowner are approached by a telecoms operator with terms to enter into an agreement, seek professional advice on both the legal and commercial terms of any proposal before signing. Your legal and professional fees should be paid by the operator.

A version of this article was published by LandBusiness, a magazine from Scottish Land & Estates.

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• What should I do if a telecoms operator knocks on my door?
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• Diversification and Agricultural Tenancies – proposals for change make environmental impact a factor to be considered

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