The Government has avoided addressing the valuation mechanisms in paragraph 24 of the Code, which will not be revisited. This reflects the Government’s view that the statutory valuation framework “remains appropriate for the installation and maintenance of digital communications infrastructure systems”.
Full detail will follow in legislation introduced to Parliament. The Government has already introduced the Product Security and Telecommunications Infrastructure Bill on 24 November which sets out some of the proposed changes in further detail. This article summarises the key announcements in the Response.
What are the key announcements?
- No Introduction of “Fast-Track” Procedures
- Increased use of the Tribunals
The Tribunals will become the forum for determining all disputes under the Code. They will also hear renewals under the 1954 Act (see below). The days of telecoms cases in the County Court may soon be over. Tribunal Rules and Practice Directions need to be updated to help govern these processes.
- New procedures for non-responsive landlords
A similar process will be introduced for non-responsive owners/occupiers of “land”. It will, broadly, involve (yet more) notices followed by an application to the FTT. Appropriate protections will be built in to protect landowner/occupier interests, with detail to follow.
A maximum term of six years will apply, with compensation rights preserved. Statutory instruments will follow in due course.
- Addressing Compton Beauchamp
The Code will be amended to permit an operator in occupation to seek rights from whoever would have had standing to grant Code rights, were the operator not in occupation. An occupying operator’s ability to confer rights on other operators will be preserved.
- 1954 Act Renewals to be “aligned” with Part 5
1954 Act renewals will be transferred to the Tribunals.
- Upgrading and Sharing
- Paragraph 17 remains unaltered
- Sharing to become a Code right
Change to upgrading rights was felt unnecessary, as this is a standalone Code right in paragraph 3.
Sharing is not a paragraph 3 Code right, but will be introduced as one in due course. This right will be limited to the operator which “owns the apparatus”. Terms will be a matter for negotiation or imposition. In the latter case, ordinary Code principles will apply and the Tribunal will retain discretion outside of Paragraph 17.
- Retrospective application of automatic rights
There was understandable concern at the introduction of retrospective rights and the interference with freely negotiated contracts made in entirely different market conditions. Extended rights can of course still be agreed between parties negotiating freely.
Undeterred, the Government will be introducing the following limited automatic rights to upgrade/share where.
- The apparatus is situated “under land”
- Works must be possible without access to private land, unless agreed otherwise
- Works must have no adverse impact on the land
- Works must impose no burden on anyone who has an interest in the land; “burden” includes adversely affecting enjoyment or causing loss, damage or expense
- Interim Arrangements
This right will be extended so that both parties can make the application and in relation to all interim terms, not only consideration. It is likely operators will use this power to seek imposition of interim arrangements which are more closely aligned with Code rights, valuation and so forth.
- Increased Emphasis on ADR
- A duty on operators to consider ADR before making court applications
- A requirement to make site providers aware of ADR as an option
- A requirement for the courts to penalise either party on costs if they unreasonably refuse to engage in ADR and the matter proceeds to trial
- Code of Practice to remain unchanged
The Government will be introducing legislation to implement these changes. A proper dissection of the law will be needed to understand their full nature and effect. The Product Security and Telecommunications Infrastructure Bill was introduced on 24 November 2021 and is making its way through Parliament.
When they do become law, the changes appear to be wide-reaching and the landscape in which agreements are reached or imposed will, once again, be altered in an industry that has already seen extensive legislation introduced over a short period of time.
The Government’s aim of “faster and more collaborative negotiations” still relies on far more than Tribunal rules and 1954 Act amendments – there is no quicker manner in which apparatus can be rolled out than two willing parties freely reaching agreement on fair terms which protect the interests of both site provider and operator. This will continue to be the case as we move into 2022 and grapple with yet more changes to the Code.