Rights of landowners and telecoms operators to be recalibrated under new Act

The Product Security and Telecommunications Infrastructure Act received Royal Assent on 6 December, though further regulations need to be passed in order for most of its provisions to come into force. Among other things, it is set to bring in the latest of a raft of recent changes to the Electronic Communications Code 2017 – a framework that stipulates rights and obligations regarding the deployment, upgrading – for example to 5G – and maintenance of mobile phone masts and other telecoms infrastructure.

The 2017 Code updated an earlier version of the Code and enhanced the rights of telecoms operators to install their equipment, to upgrade existing equipment and to share apparatus owned by other operators situated on public and private land. It also brought in a new valuation mechanism to recalibrate how much landowners could be paid by telecoms operators to use their property to roll out this infrastructure.

However, both landowners and telecoms operators had raised concerns with how the 2017 Code works in practice and the 2017 Code has continued to generate a significant amount of litigation, including, for the first time in 2022, in the Supreme Court. This uncertainty had a chilling effect on the consensual completion of agreements out of court between landowners and telecoms operators because parties were often ‘holding out’ to wait and see how the litigation would go before committing to agreements.

This spurred the UK government to propose some changes. The new regime has now been finalised in the Act, although, whilst this Act implements the statutory mechanism for changes to be made, much of the detail is set to be further consulted upon and implemented at a later date

The revised Code will include: changes to the valuation mechanism in certain cases under the Landlord and Tenant Act 1954 – to bring the valuation mechanism more in line with the Tribunal valuation approach to Code cases. It will also include extended rights regarding the upgrading and sharing of telecommunications apparatus. Dispute resolution processes will also be amended, with a new duty for operators to consider using alternative dispute resolution prior to making a Tribunal application. New provisions relating to ‘national security’ will also feature in the revised Code.

It is not yet clear, however, when new regulations giving effect to the revised Code will  be implemented.

Commenting on the changes, Ian Morgan, property and telecoms disputes expert at Pinsent Masons, said: “Anybody hoping that parliament would deliver an early Christmas present in terms of answering the many and vexed questions that have been posed by various interested parties in recent years found that ‘batteries are supplied separately’ to this Act.” 

“The answers to the various challenges the 2017 Code raises are far from straightforward, and experience tells us that such questions merit detailed and thorough analysis by all of the players to ensure that what is finally implemented hopefully wins the hearts and minds of all. Engaging with a broad spectrum of stakeholders and coming up with something that is fit for purpose must now be the priority – 2023 is a new year and represents a new opportunity to re-set the dial on engagement. The conversation will no doubt continue, not least because this Act, whilst representing a welcome step forward, still leaves some unanswered questions,” he said.