Consultation outcome

Access to land: consultation on changes to the Electronic Communications Code - government response

Updated 24 November 2021

Ministerial foreword

The government is committed to delivering lightning-fast, reliable broadband to everyone in the United Kingdom and making the country a global leader in digital connectivity. The COVID-19 pandemic has highlighted how important it is to be connected - now more than ever - and having long-lasting gigabit capable connections in place will help to keep society functioning both now and in the future.

But it’s not just fixed line operators who are crucial to this mission. Mobile operators are beginning to roll out 5G infrastructure to more of our towns and cities right across the UK - helping to keep us connected wherever we are.

In order to achieve our goals, we must continue to focus on maintaining and upgrading our digital infrastructure, which will be a key factor in driving our economic recovery.

I am pleased to say that we are already making progress:

• 60% of UK premises now have access to gigabit-capable broadband, which is up from 6% in 2018
• 92% of the UK landmass is covered by a good 4G signal from at least one mobile network operator, which is up from 80% in 2017
• 69% of the country is covered by all four mobile network operators, which is up from 49% in 2017.

In 2017, in order to help speed up the rollout of our gigabit-capable networks and further improve mobile coverage, we reformed the Electronic Communications Code (‘the Code’). Since then we have seen a significant increase in connectivity but, despite this progress, we understand that there continue to be issues to address.

Since the 2017 reforms were implemented, the government has listened to feedback from all stakeholders about the impact that they have had. Based on that feedback, we recognised that updates to the Code would be needed if the aim and ambition of the 2017 reforms were to be fully realised.

That is why we launched a consultation in January to take another look at the Code, addressing the areas that needed further attention. This will ensure we have a supportive legislative framework that can aid the smooth rollout of digital infrastructure, and allow us to achieve our ambition of having nationwide gigabit-capable connectivity as soon as possible.

This response sets out the changes we intend to make to the Code following the consultation to ensure the Code is fit for purpose, both now and in the future.

I want to thank all of those who responded to the consultation for sharing their experience and insight. We have taken into account the range of views provided by respondents, and the resulting policy aims to balance the interests of site providers, operators and the general public.

I am excited about the impact that this policy - once enacted and implemented - will have on the scale and pace of roll-out of gigabit-capable networks and our ambitions for 5G and beyond. The potential economic and social benefits of fast and reliable connectivity can only be realised if we have confidence in the effectiveness of the underpinning legislation.

I believe these reforms will do just that and ensure that the Code is fit for purpose and continues to help us deliver our digital connectivity targets.

Julia Lopez MP

Minister of State

Executive summary

Context

1.1. The government has ambitious plans to achieve the nationwide rollout of future-proof, gigabit-capable broadband and 5G networks as soon as possible, to unlock the huge economic and social benefits that this will bring. As we emerge from the COVID-19 pandemic, ensuring the whole country has access to world-class digital infrastructure will be critical to our economic recovery.

1.2. We continue to work with industry to target a minimum of 85% gigabit-capable coverage by 2025 and to get as close to 100% as possible. We have launched our £5 billion ‘Project Gigabit’ programme to ensure premises in hard-to-reach areas are not left behind in being able to access gigabit-capable networks. We have announced the first areas to benefit from this record investment, and will continue to update our procurement pipeline on a quarterly basis.

1.3. We are also aiming to ensure that 95% of the UK’s geographic landmass has 4G coverage from at least one mobile network operator by 2025 and that the majority of the UK population has 5G coverage by 2027. We are already taking steps to deliver this and, through our Wireless Infrastructure Strategy, will set out a policy framework for the development, deployment and adoption of 5G and future networks in the UK.

1.4. The government is making significant progress, by implementing the recommendations made in our Future Telecoms Infrastructure Review published in 2018, to accelerate this work. However, it is important that we deliver the changes that are needed to speed up commercial and public investment in gigabit-capable networks and accelerate the deployment of 4G and 5G.

1.5. One important part of accelerating this work is the Code. The Code was substantially reformed in 2017, recognising the important role effective legislation plays in delivering the rollout of digital infrastructure and enabling both society and the economy to benefit from fast and reliable digital services.

1.6. However, from feedback we received from stakeholders before the consultation commenced, it was clear that further changes could be necessary to support the aims of the 2017 reforms. Based on discussions with stakeholders before the consultation, three areas were identified where it was felt further reforms could have the most benefit:

• Issue 1: Obtaining and using Code agreements
• Issue 2: Rights to upgrade and share apparatus
• Issue 3: Expired agreements

1.7. The consultation outlined what the government believed were the key issues that impact the effectiveness of the Code and set out a range of suggestions intended to address these problem areas.

1.8. The responses that we received from the consultation have been used to inform the proposals on further changes to the Code and other next steps outlined in this document.

The Consultation

1.9. The consultation ran between 27 January and 24 March 2021 and sought stakeholders’ views in the following three areas:

• obtaining and using Code agreements
• rights to upgrade and share apparatus
• expired agreements

1.10. There were 1266 responses to the consultation, largely from landowners, the general public, telecoms operators and professional bodies. A list of the organisations who responded can be found at Annex B.

1.11. All responses to the consultation have been recorded and analysed. This document outlines the key points made in those responses, drawing out the common themes that emerged and the most frequently-expressed points of view.

1.12. Most respondents linked their answers to the overarching subject matter, rather than to the specific questions which were asked in the consultation document. This document is therefore structured in a similar manner, reflecting the key themes arising under each section, with reference to specific questions where appropriate.

1.13. A significant number of submissions received referred to the changes which the Digital Economy Act 2017 made to the statutory valuation regime. This affects how much operators are required to pay site providers for the use of their land.

1.14. However, as stated in the consultation, the government does not intend to revisit the statutory valuation framework. This issue was therefore not within the scope of the consultation. The government’s policy position remains that the statutory valuation framework which underpins negotiations, and is set out in paragraph 24 of the Code, remains appropriate for the installation and maintenance of digital communications infrastructure systems.

1.15. Access to a good digital network has become even more important recently, with many of us being reliant on digital infrastructure to work or access vital services such as healthcare or education. It is crucial that such networks are available to the entire population, across the whole of the UK. Connectivity has never been more important: it has permitted millions of people to work at home, provided information and entertainment to those isolating themselves due to the pandemic and allowed children to continue their education while their schools were closed. Regulating the price paid for the use of land puts operators on a similar footing to operators of utilities like gas, water and electricity and we maintain that this is the right approach. Therefore, we do not intend to revisit the valuation framework contained in the Electronic Communications Code.

Government response

1.16. As soon as Parliamentary time allows, the government will introduce primary legislation that will make changes to the Code. These changes will be based on the responses received to the consultation.

1.17. The changes we make will support the installation, maintenance and upgrading/sharing of apparatus, alongside facilitating faster and more collaborative negotiations between operators and site providers, while balancing the public interest in having improved digital connectivity with private property rights.

1.8. Our proposals are set out in more detail throughout this document.

Introduction

Delivering gigabit broadband and 5G to the UK

2.1. World class digital infrastructure is the key to unlocking the UK’s enormous digital potential. Digital infrastructure is now even more at the heart of our daily lives. The Covid-19 pandemic has fundamentally changed the way many of us live and work online and shown that good connectivity is essential for people to remain in contact with friends and family, get medical treatment and educate their children.

2.2. The government is working with industry to target a minimum of 85% gigabit capable national coverage by 2025, and will seek to accelerate rollout further to get as close to 100% as possible. We will also aim to ensure that 95% of the UK’s landmass has 4G coverage via the Shared Rural Network and both the government and the mobile network operators remain confident that their combined coverage is expected to be delivered by the end of 2025. Furthermore, our ambition is for the majority of the UK population to have access to a 5G signal by 2027. Delivering on these ambitions is critical to ensure that anyone, anywhere in the UK can start and grow a digital business, develop new technologies and drive forward innovative research.

2.3. We have made significant progress to date: according to thinkbroadband, 60% of UK premises now have access to gigabit-capable broadband, up from just 6% in 2018, and internal DCMS analysis suggests that 5G is now available in more than 385 locations across the UK. We have invested record levels of funding and removed barriers to the deployment of fixed and mobile broadband. We have also passed the Telecommunications Infrastructure (Leasehold Property) Act 2021 - which will make it easier for operators to provide connectivity to the 10 million people living in flats and apartments - and consulted on reforms to the planning system, to further support the deployment of 5G and extend mobile coverage.

2.4. We want to go further still, so that all parts of the UK can enjoy the benefits of upgraded digital infrastructure. Through our rollout of the £5 billion UK Gigabit Programme, we will connect the hardest to reach homes and businesses with gigabit-capable broadband, and deliver 95% 4G geographic coverage by the end of the programme, through our £1 billion Shared Rural Network deal with mobile network operators.

2.5. In order to achieve these ambitions, it is critical that fixed and mobile network operators are able to deploy, install and maintain their apparatus on public and private land as easily and as cost effectively as possible, as well as optimising the use of existing networks through greater upgrading and sharing of installed apparatus. However, while we strongly believe robust digital networks are in the wider public interest, we recognise any statutory regime must maintain an appropriate balance between that public interest and the private property rights of landowners.

The Electronic Communications Code

2.6. The Code is the legal framework underpinning rights to install and keep electronic communications apparatus on public and private land, and to carry out other activities needed to provide digital communications networks.

2.7. Code rights are normally created by an agreement^{[footnote 1]} between a Code operator^{[footnote 2]} and an occupier^{[footnote 3]} of relevant land, with the terms of that agreement negotiated between the parties to achieve a mutually acceptable outcome. However, if an operator and an occupier are unable to reach an agreement consensually, a court may impose a Code agreement granting the operator Code rights in certain circumstances.

2.8. A court can only impose an agreement between an operator and an occupier of land if the operator makes an application in accordance with the requirements set out in the Code. The imposition of a Code agreement is not automatic. The court is required to apply a two-limbed test when deciding whether a Code agreement should be imposed. This means that an agreement can only be imposed if the court considers that:

• the prejudice caused to the occupier by the order is capable of being adequately compensated by money; and

• the public benefit likely to result from the making of the order outweighs the prejudice to the occupier

2.9. In deciding whether the ‘public benefit’ condition is met, a court must specifically take into account the public interest in having access to a choice of high quality electronic communications services. If a court decides it is appropriate for a Code agreement to be imposed, the framework of the Code sets out the kind of terms that must be included, and - in particular - how a court should decide the appropriate financial terms. This is referred to in this document as the ‘statutory valuation framework’.

2.10. Agreements granting Code rights do not give operators unlimited powers.

Whether a Code agreement is negotiated by an occupier and an operator, or imposed by a court, the Code rights contained in it are only exercisable in accordance with the terms of that agreement.

Why do we need an Electronic Communications Code?

2.11. The purpose of the Code is to provide a regulatory framework that supports and encourages the efficient and cost-effective installation and maintenance of robust digital communications networks. At the same time, the Code aims to ensure that an appropriate balance is achieved between the public interest in having these networks and the private rights of individual landowners and occupiers.

Background to the 2017 reforms

2.12. The Code was substantially reformed in 2017. Those reforms specifically recognised the increasing importance of access to fast and reliable digital services for society and the economy. The 2017 reforms therefore specifically aimed to make network deployment faster, more efficient and more cost effective, by:

• introducing the new statutory framework for the valuation of Code rights. This was intended to significantly reduce the amounts operators would be required to pay site providers, making network deployment more cost effective and encouraging investment

• introducing limited automatic rights to upgrade and share installed apparatus. These rights removed the need for operators to have to seek site provider^{[footnote 4]} agreement or to make additional payments if upgrading installed apparatus, or sharing use of it with another operator, would have little impact on the site provider or the land

• transferring the jurisdiction for the resolution of Code disputes from the county courts in England and Wales to the Lands Chamber of the Upper Tribunal (the Upper Tribunal), to allow faster and more cost effective resolution of disagreements. Complementary changes were made in relation to the courts in Scotland and similar changes are planned for Northern Ireland

2.13. The reformed Code came fully into effect on 28 December 2017. Throughout this document:

• an ‘old Code’ agreement means an agreement to confer Code rights completed before 28 December 2017
• a ‘new Code’ agreement means an agreement to confer Code rights completed on or after 28 December 2017

2.14. These terms have no statutory meaning and are used in this document for illustrative purposes.

2.15. This document uses the terms defined in the introduction to the consultation document.

Responses

3.1. The consultation received responses from landowners, the general public, telecoms operators, different representative groups and organisations and professional bodies, such as the Law Society and the Royal Institution of Chartered Surveyors.

3.2. The consultation asked for feedback on three topics where we thought changes to the Code may be needed to ensure that the UK has a sufficiently robust electronic communications network to deliver the coverage and connectivity consumers and businesses need. A series of questions on individual issues were asked on each of the following:

• Issue 1: Obtaining and using Code agreements

• Issue 2: Rights to upgrade and share apparatus

• Issue 3: Expired agreements

3.3. Most respondents to the consultation linked their answers to overall themes rather than to the specific question being asked, providing a holistic response to the wider policy proposals. This document therefore responds in the same manner and reflects the themes raised in each of the sections, rather than addressing each question individually.

Obtaining and Using Code Agreements

Issue 1: Negotiations: lack of engagement and collaboration

Context

3.4. As outlined in the consultation, operators, occupiers, site providers and representative organisations have reported finding engagement and negotiation between one another difficult.

3.5. This can have a negative impact on the parties involved, potentially undermining trust and collaboration and unnecessarily prolonging negotiations. This in turn has negative consequences for the digital network as a whole, delaying the rollout of improved connectivity for communities, as well as potentially undermining trust and collaboration.

3.6. Negotiations between parties can be time consuming, costly and worrisome for all involved, with any resolution through the courts potentially making future working relationships more difficult.

3.7. Although the introduction of the statutory valuation framework in the 2017 Code reforms has reduced deployment costs for operators, we recognise that this has had an impact on the willingness of occupiers and site providers to agree, or renew, Code rights.

3.8. However, as previously outlined, the consultation was not intended to revisit the statutory valuation framework contained within the Code. Instead, options were put forward to help foster more collaborative relationships between parties.

3.9. The government therefore proposed:

• a statutory process for monitoring complaints raised about non compliance with the Ofcom Code of Practice (‘the Code of Practice’)

• the introduction of an Alternative Dispute Resolution scheme and

• fast track court procedures for certain types of disputes

3.10. The aim of introducing these proposals was to ensure that issues other than valuation that had been brought to our attention, including poor communication and a lack of trust between parties, were not a block to the progress of negotiations.

3.11. We suggested that where issues do arise, these changes would enable disputes to be resolved more quickly and cheaply than previously, minimising any adverse impact on the future relationship between the parties.

We heard

Alternative dispute resolution

3.12. The majority of respondents told us that our assessment of the main problems that currently exist when parties are negotiating either new, or renewal, Code agreements is correct. However, there was a split between the telecoms industry, the vast majority of whom agreed with our assessment, and landowners, the majority of whom identified additional problems, most notably the statutory valuation framework introduced in 2017. As stated above, the statutory valuation framework was outside the scope of this consultation.

3.13. The vast majority of respondents, among both operators and landowners, said that, where points of dispute do not relate to legal interpretation of the Code, Alternative Dispute Resolution (ADR) may assist in resolving them.

3.14. In general, we heard from respondents that no one ADR scheme should be mandated and that it should not be made a legal requirement for parties to always engage with ADR before going to court. However, the vast majority of respondents were in agreement that where unreasonable failures to engage with ADR occur, courts should be able to account for this when making an order for costs. Many noted that courts can already take this into account when making a costs order, at the same time noting this is not explicit within the Code itself.

3.15. A key concern of operators was that if ADR is used, it should not delay the timescales for cases to be heard by the courts, and they noted that there is a 6 month timeframe^{[footnote 5]}for disputes to be decided by the courts.

Statutory complaints process

3.16. With regard to a statutory complaints/compliance process for the Code of Practice, most landowner groups and professional bodies supported this proposal. This is in contrast to the majority of operators who did not think this should be introduced.

3.17. Reasons given by operators included that the Code of Practice was only designed to be a code of best practice, and therefore was unsuitable for enforcement. Some operators also highlighted that there were already ongoing discussions about reforming the Code of Practice.

Fast track court procedures

3.18. 42 respondents said that there are situations where fast track court procedures should be available. Respondents highlighted several areas where they thought this could be helpful, including:

• cases where there are public safety issues involved

• cases based on a point of law already dealt with by the Upper Tribunal, which could be dealt with by the First tier Tribunal

• cases where there is no point of law at issue, and it is solely the terms of the agreement that are in dispute, particularly valuation

• situations where occupiers have failed to respond to requests to enter into Code agreements

• cases where interim or temporary rights are needed

3.19. However, we also heard from the same number of respondents that a fast track procedure should not be available. Respondents highlighted that as more cases are resolved through the courts, case law will become more established, and as such resolution should become quicker, either through the courts or through ADR.

Government response

Alternative dispute resolution

3.20. After considering the responses to this consultation, the government agrees that greater use of ADR would help parties reach a Code agreement, or agree that the land or property would not be suitable for the operator’s purposes, more quickly and cheaply than going through the courts. Even where parties are unable to reach an agreement via ADR, the process should assist the parties in at least narrowing down the issues between them. This in itself is useful, as it reduces the amount of resources and court time needed to determine the dispute.

3.21. We are not proposing to make ADR mandatory before a case can be referred to the courts, as we recognise there will be situations, for example, where there is a point of law in dispute, where this might not be suitable.

3.22 We also note operators’ concerns that ADR should not delay the overall time it takes for cases to be heard by the courts. However, under the current court procedure rules, there is already provision to ensure ADR does not have a negative impact on the courts’ timescales, unless otherwise agreed by the parties. We therefore do not think we need to introduce specific measures on this point.

3.23. However, we do want to make sure that use of ADR, rather than litigation through the courts, is encouraged wherever possible, to promote better engagement between the parties during negotiations and assist in disagreements being resolved in a more collaborative way.

3.24. We therefore plan to introduce changes to the Code that will encourage the use of ADR to settle disputes or narrow the disputed issues. We will:

• introduce a duty for operators to consider ADR before making an application to the courts

• introduce a requirement that, prior to making an application to the courts, operators must make occupiers and site providers aware that ADR is available, if a consensual agreement cannot be reached

• require the courts to take account of any unreasonable refusal to engage in ADR when awarding costs once the dispute has been determined

These changes will not only apply to new Code agreements, but also to negotiations about the renewal or termination of expired Code agreements.

Complaints handling

3.25. After reflecting on the responses to the consultation, we intend to introduce a requirement for Ofcom to include matters concerning operators’ handling of any complaints about their conduct in relation to Code agreements and negotiations in the Code of Practice. We intend for this to be accompanied by a new statutory requirement for all operators to have a complaints procedure in place.

3.26. A duty for operators to have a complaints procedure can be included in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003. The Secretary of State already has powers under section 109 of the Communications Act 2003 to amend these Regulations to introduce a new requirement for operators to have a complaints process. Section 110 of the Communications Act will allow Ofcom to take action against an operator where it has breached the complaints handling requirements.

3.27. We will engage further with Ofcom, the telecoms industry and site providers on the appropriate requirements for complaints handling processes, before making any amendments to the Regulations following this further engagement.

Failures to follow the Code of Practice

3.28. In light of responses to the consultation, we consider that the Code of Practice is not appropriate for statutory enforcement. The Code of Practice is intended to set out guidance on best practice, not to set out specific requirements. In addition, the Code of Practice applies to both operators and site providers, and introducing enforcement mechanisms to apply to both parties, or extending the powers of the telecoms regulator to apply to landowners, would be disproportionate.

3.29. However, we note that Ofcom already has powers under paragraph 103 of the Code to amend and update the Code of Practice, subject to consultation. We also note that there are ongoing discussions between industry and site providers on potential changes to the Code of Practice. The government will work with industry, landowners and Ofcom on any workable changes to the Code of Practice that these groups propose. The government strongly encourages this ongoing engagement, and would support a review of the Code of Practice. We note that a substantial majority of respondents to the consultation also support a reformed Code of Practice.

Fast Track Procedures

3.30. We agree that disputes should, as a rule, be dealt with as promptly as possible.

3.31. Having reviewed responses to the consultation, we consider that insufficient evidence has been provided to justify introducing specific fast track court procedures for Code cases.^{[footnote 6]} We note that:

• there is already scope within court procedures for parties to request prioritisation

• there are already procedures for obtaining interim and temporary Code rights, which can be used to secure access and other Code rights quickly

• our changes to the Code encouraging the use of ADR as an alternative where negotiations stall should enable the majority of cases to be resolved more quickly

• there is already scope for the Upper Tribunal to remit matters to the First-tier Tribunal where appropriate; and

• finally, we intend to amend regulations so that proceedings on Code disputes can be commenced in either the Upper Tribunal or the First-tier Tribunal, subject to any procedural rules introduced by the courts that may require particular types of proceedings to be commenced in a specific court. This will enable greater flexibility in the use of judicial resources and we believe will help ensure cases can be heard promptly.

Issue 2: Non-responsive and non identifiable occupiers

Context

3.32. Code rights can only be granted if the occupier agrees to grant them or if they are imposed by a court. If an occupier refuses to agree or fails to respond to a statutory notice requesting Code rights within 28 days, the operator may make an application to the court asking that a Code agreement is imposed.

3.33. Non-responsive occupiers and landowners can slow down the operators’ deployment of a network to a community. In the worst cases, delays may mean that an operator either has to re-route their network at substantial cost, or remove the premises that it is unable to reach from its overall network build altogether. This latter outcome is referred to as ‘descoping’.

3.34. Once an operator has left the area, it is unlikely that it will return to connect any premises that have been left behind as a result of the need to reroute or descope, due to the large additional costs involved. Should they choose to do so, these costs may be passed on to the consumer in the form of higher fees. Given the increasing reliance on connectivity, there is clearly an imperative to avoid this happening.

3.35. The Code currently offers a route via the courts for operators to obtain access rights in circumstances where the occupier is non-responsive, but it is costly and time-consuming. For example, during the course of preparations for the Telecommunications Infrastructure (Leasehold Property) Act 2021 (‘the 2021 Act’) we received estimates from operators that using the Upper Tribunal to gain access to an individual property can take 7-12 months per case. The additional administrative and legal costs involved make this an unattractive option, leading to the re-routing and descoping referred to above.

3.36. While the 2021 Act addressed some aspects of this problem, specifically the issue of unresponsive landlords in cases where a tenant within a multi-dwelling building (e.g. a block of flats or apartment complex) has requested a connection, we believe there may be a need to apply the same principle to other types of land not covered by that Act.

3.37. Therefore, while we accept that occupiers and landowners should have every opportunity to discuss requests for Code rights and negotiate mutually acceptable terms, if an occupier or landowner does not respond at all to repeated requests for Code rights, we felt there should be a specific procedure allowing an operator to acquire those rights for a time-limited period, outside the ordinary dispute process.

3.38. As a result we proposed that an alternative procedure for obtaining Code rights should be available, where an operator can demonstrate they have made reasonable efforts to secure a Code agreement and received no response from the landowner or occupier.

3.39. The aim of this proposal was to create a faster process, reducing the number of connectivity gaps that arise due to a failure by the landowner or occupier to respond.

We heard

3.40. There was a mixed response about the impact non-responsive occupiers/ landowners have on network deployment. While some respondents believed that non-responsiveness was the primary cause of delay, others indicated that it was operators’ own internal procedures for contacting landowners and occupiers that was the most likely cause.

3.41. Some respondents noted that due to the number of wayleaves often required by operators, any delay to agreeing Code rights could have a substantial impact on rollout plans, including potential descoping of premises.

3.42. An extension to the 2021 Act was proposed by some respondents as one way to resolve the issue of non-responsiveness. It was suggested that the 2021 Act could include other property types, as a way of encouraging landowners to engage with requests for Code rights.

3.43. The vast majority of operators thought there should be a streamlined process to help to bring about a faster resolution in cases where an occupier fails to respond to a request for Code rights. However the vast majority of landowners disagreed. If a new process were to be introduced, respondents proposed a number of measures and safeguards to maintain a balance between the public interest and the private rights of occupiers and landowners. These were considered as part of our response.

Government response

3.44. Having reviewed the consultation responses, we have decided to introduce a process that we anticipate will be faster, cheaper and easier for operators to gain access to land and install, (as well as have rights to subsequently maintain and upgrade) digital infrastructure in situations where a landowner/occupier has failed to respond to repeated requests for access. This process will, however, be subject to a range of procedural requirements to protect the interests of landowners and occupiers.

3.45. We propose to update the Code to create a similar process to 2021 Act, which addresses the issue of unresponsive landowners or occupiers of land (rather than building owners) so that operators are not unreasonably impeded when seeking to upgrade the UK’s telecoms networks.

3.46. Where an operator does not receive an initial response from an occupier to a request to grant Code rights, the Code will set out a procedure for the operator to follow (including a requirement for the operator to issue three further notices). If the operator follows that procedure and the occupier still fails to respond, the operator will be able to apply to the First-tier Tribunal for Code rights to be imposed for a maximum of 6 years (with the actual period to be provided under the regulations made by the Secretary of State).

3.47. If, at any point before an order granting these rights is made, the occupier contacts the operator/ court, the operator will no longer be able to use this procedure and will have to obtain/apply for Code rights in the usual way. However, if the occupier remains unresponsive and Code rights are imposed by the courts, the occupier will still be able to apply to the courts for compensation at a later date, if the exercise of those rights by the operator causes any loss or damage.

3.48. To complement the above proposals, we propose that the Secretary of State will be given powers to make provision, through regulations, in respect of a number of particular matters. These will include the ability to expand the types of land that the non-responsive procedure can be used for; to specify additional procedural steps that operators must follow before seeking time-limited rights, and the evidence they must provide; and what terms must be included in a Code agreement imposed by an order made as a result of this process. We will also consider whether the exercise of some of these powers should include a requirement for the Secretary of State to consult to ensure stakeholders’ views are taken into account.

None of the consultation responses identified challenges relating to difficulties identifying landowners when seeking rights to install new apparatus. The government does not currently propose to make any specific changes to existing legislation on this point.^{[footnote 7]} The government will however remain open to further engagement with stakeholders on this issue.

Issue 3: Who can agree to grant Code rights?

Context

3.50. Since the 2017 reforms to the Code came into force, we have heard that the current law can create difficulties where an operator is in occupation of the land and needs to obtain new Code rights.

3.51. As set out in the consultation, we wanted to consider making changes to the definition of an occupier or changing who is able to confer Code rights, where an operator is in occupation of a site.

We heard

3.52. Although many respondents did not express an opinion on this point, or said they had no strong opinions, there was some support for making changes to the definition of an occupier or changing who is able to confer Code rights. Operators were more likely to support making changes to the definition than landowners.

3.53. Many respondents, in particular landowners, said that the owner of the land should be the person able to confer Code rights, or should be consulted when those rights were conferred. Several respondents said that, where an occupier was unable to confer Code rights (for example because the operator themselves was the occupier and legally could not make a contract with itself) they should be able to seek Code rights from whoever holds the superior legal interest^{[footnote 8]}.

3.54. Several respondents highlighted that this issue was already being considered in ongoing court cases, and that DCMS should therefore not make any changes on this point at present.

3.55. Finally, many respondents said that the key issue was to have a consistent approach to who could or could not confer Code rights.

Government response

3.56. To date, we understand that the main difficulty with the current law arises where an operator is occupying land, but their Code agreement with the site provider has expired. In those circumstances, unless the agreement can be renewed under Part 5 of the Code (which is not available in all cases) any new Code agreement must be made with the occupier of the land. However, this is clearly not a satisfactory position if the operator is, themselves, the occupier of the land in question: the operator cannot enter into a contract with itself. In these specific, narrow circumstances, we intend to amend the law so that if an operator or operators are exclusively occupying the land, the operator will be able to obtain Code rights from whoever would be able to grant those rights if the operator was not in occupation of the land. This will normally be the landowner, or whoever has rights to control the use of the land etc.

3.57. However, we also intend to provide that in circumstances where, as an occupier of land, an operator is currently able to confer Code rights on other operators, they remain able to do so.

Issue 4: Enforcing Code agreements and terms

Context

3.58. The Code currently does not provide detailed procedures for the enforcement of Code agreements or rights, making only general provision in paragraph 93.

3.59. We believe that while enforcement should be a last resort, it is important to ensure that both operators and site providers have the ability to enforce their rights through accessible and efficient procedures.

3.60. We heard concerns through discussions with stakeholders prior to consultation that concerns about future non-compliance with, and a perceived inability to enforce, the terms of a Code agreement, were having an adverse impact on negotiations and the willingness of parties to enter into Code agreements.

3.61. Therefore, we wanted to know whether site providers and operators were confident about the existing remedies in the Code and if not, what alternative remedies could encourage compliance with Code agreements. Alternatively where those agreements are breached, we wanted to identify any ways that a fast and accessible remedy could be provided.

We heard

3.62. The majority of respondents who expressed an opinion on this topic reported difficulties relating to ensuring compliance with the terms of a Code agreement. The main cause of these difficulties was poor behaviour, rather than the Code itself. Only 2 respondents suggested that paragraph 93 of the Code was the cause of the difficulties, compared to the overwhelming majority of respondents who said this was not the case.

3.63. Both site providers and operators who responded felt that there were already a number of legal remedies available to them to address non compliance through the terms of their Code agreements. In addition, greater adherence to the Code of Practice was raised as a possible remedy.

Government response

3.64. Having considered the responses to the consultation, we do not have sufficient evidence to support making reforms to how Code agreements are enforced. Therefore we are not proposing to make any changes to the Code on this issue.

Issue 5: Modifying agreements

Context

3.65. While a Code agreement can be amended with the consent of all parties to that agreement, changes can only be made through a voluntary agreement or where the original Code agreement permits it.

3.66. This means where one party wishes to amend the Code agreement and the other does not, or where the parties agree a Code agreement should be amended but cannot agree the terms of that amendment, they are unable to seek a resolution through the courts. Instead they must wait until that current agreement expires and then apply to the court for the imposition of new terms.

3.67 While we agree this is the correct position in most cases and that Code agreements should provide all parties with as much certainty as possible, we recognise that there may be situations where one party has a genuine need for changes to the terms.

3.68. However, parties should not be able to revisit a Code agreement simply to secure more favourable terms than they currently have.

3.69. We invited views on the need for changes to the Code that could give site providers and operators a means to ensure that Code agreements can be modified through the courts should a genuine need occur. We also asked for feedback on what would be considered a good reason for a court to impose new or modified terms, as well as what safeguards and limitations could be put in place.

We heard

3.70. A significant number of respondents did not respond on this point. Of those who did, the majority did not think that operators or site providers should be able to ask a court to impose new, additional or modified rights or terms, including the vast majority of landowners. Most operators, however, thought that they should be able to ask the court to modify the terms of Code agreements.

Government response

3.71. Having considered the responses to the consultation, we do not have sufficient evidence to support making reforms which would allow the courts to modify an ongoing Code agreement. Therefore we are not proposing to make any changes to implement these proposals.

Rights to upgrade and share apparatus

Introduction

4.1. Rights to upgrade and share apparatus can play a major role in improving and expanding existing networks, optimising the use of existing apparatus and reducing the need for additional installations. The consultation asked about a number of issues relating to operator rights to upgrade and share their apparatus. These issues, and the government’s response on each are set out separately below.

4.2. Our overarching policy aim in relation to upgrading and sharing is to ensure that the legislative framework contained in the Code:

• enables operators to upgrade their apparatus as efficiently as possible, while taking into account the impacts on site providers/landowners

• encourages operators to share their apparatus as often as possible, including for regulated operators under Significant Market Power obligations, while taking into account the impacts on site providers

• provides sufficient clarity for operators and site providers to understand the circumstances in which the automatic rights are available, and when and how they can be used

• provides sufficient clarity for operators and site providers to understand when different types of upgrading and sharing activities fall outside the scope of the automatic rights, and must be agreed separately

Issue 1: Automatic rights to upgrade and share apparatus

Context

4.3. Paragraph 17 of the Code grants operators an automatic right to upgrade their apparatus and share it with other operators provided that:

• the upgrading or sharing has no adverse impact or no more than a minimal adverse impact on the appearance of the apparatus; and

• the upgrading or sharing imposes no additional burden on the site provider.

4.4. However, we had heard from stakeholders that the conditions under which the automatic rights can be exercised are unclear and difficult to use in practice. We therefore invited views on proposals to revisit the wording of the automatic right conditions in the Code to make it clearer what is and is not permitted.

We heard

4.5. In responding to the questions on upgrading and sharing, a number of general views were put forward relating to how and when automatic rights should be available. There were significant differences between the proposals received from operators and site providers - although few distinguished between the right to upgrade and the right to share.

4.6. However, there was agreement that any automatic right to upgrade or share should only be applied if the activity/development is deemed to be de minimis, i.e. have minimal impact. This was felt to potentially ensure faster deployment for both fixed and mobile operators, while balancing concerns held by some site providers about the health and safety risks that could be caused by automatic rights to share and upgrade.

4.7. Some operators were concerned that paragraph 17 of the Code is currently too restrictive and does not define well enough what is currently allowed. The benefits of providing additional guidance on what is a material burden on site providers was also highlighted, should any amendments to automatic rights be made.

4.8. Regarding the specific question of amending the current conditions under which the current paragraph 17 automatic rights can be exercised, there was greater consensus, with the majority of the telecoms sector and professional bodies who responded in support of changes being made. Site provider views, where given, were more split, but the majority did not provide a response to this question.

4.9. Reasons put forward by respondents for amending paragraph 17 of the Code included issues with interpreting the current text leading to misunderstandings; it being considered as a ceiling and therefore limiting development; and it slowing down negotiations due to disagreements about when payment for rights to upgrade and share is required, and how much such payments should be. For mobile operators in particular, paragraph 17 was seen as restrictive for mast sites. Therefore it was suggested that it be amended to specifically support this type of apparatus.

4.10. Those who opposed amending paragraph 17 of the Code also suggested several risks, which have been taken into account. These included weakening relationships between site providers and operators, which could lead to a lack of willingness to engage; the removal of protections in paragraph 17 undermining paragraph 21 of the Code; and that instead paragraph 21 should be revisited before any changes to paragraph 17 are made.

Government response

4.11. The existing rights to upgrade and share under paragraph 17 of the Code will be left in place. We have carefully considered stakeholder views about the difficulty in determining what is permitted under the paragraph 17 conditions, including concerns over health and safety or compensation. However, given the diverse activities that upgrading and sharing apparatus can include, and the varying impacts on land or a site provider that may arise, we think that introducing conditions which are overly detailed or prescriptive may have unhelpful consequences. We think the intention of paragraph 17 is clear: upgrading and sharing activity which has very little additional impact on site providers should be permitted without the need for separate negotiations or payments to be made.

4.12. Furthermore, the exercise by an operator of their rights under paragraph 17 will remain subject to any terms in the wider Code agreement between the parties regarding notice, which we would expect to address any concerns about an operator’s activity having health or safety impacts. This should provide the opportunity for dialogue about potential impacts where relevant.

Issue 2: Upgrading and sharing rights not permitted under paragraph 17

Context

4.13. At the present time, parties are able to negotiate and agree rights to upgrade and share which are less restrictive than those in paragraph 17 of the Code. However, we understand from conversations with stakeholders that there has been disagreement between operators and site providers over whether the courts have jurisdiction to impose rights to upgrade and share apparatus that exceed what is permitted under paragraph 17.

4.14. We believe it is important that operators have the ability to upgrade and share their apparatus. However, we believe that any rights to do this, beyond the automatic rights contained in the Code, should be on terms that are either agreed by the parties or imposed by a court.

4.15. We recognise that there has been disagreement about whether, when imposing the terms of a new or a renewal Code agreement, the courts can include rights to upgrade and share that exceed the rights in paragraph 17. The consultation therefore asked whether changes are needed to make the position more clear, as well as to highlight the importance of upgrading and sharing to network expansion.

We heard

4.16. The majority of respondents who answered question 18 (on whether courts should be able to impose more extensive upgrading and sharing rights than permitted under automatic rights in paragraph 17) believed that the imposition of additional rights to upgrade and share should be available and that this position should be made clear in the Code. However, as with other issues on upgrading and sharing apparatus there was a divide between site providers - who did not want the imposition of additional rights to be available - and other respondents.

Government response

4.17. After careful consideration, during which we took into account the fact that this is an issue which has been considered in some detail by the courts, we have concluded that changes to this effect are not needed in relation to upgrading. Upgrading is included as a specific Code right in paragraph 3 of the Code, separately to the automatic right to upgrade provided for in paragraph 17. We think this makes it clear that rights to upgrade apparatus which are outside the scope of paragraph 17 can be agreed or imposed.

4.18. We think the position in relation to sharing, which is not currently included as a Code right in paragraph 3, is less clear. Since we think it is important that, as with rights to upgrade, it should be possible for rights to share apparatus outside the scope of paragraph 17 to be agreed or imposed, we have decided to make changes to paragraph 3 to make it clear that sharing is a distinct Code right.

4.19. As the right to share relates specifically to the right to share apparatus, we think this right should only be available to the operator who owns the apparatus in question. It should not be possible for subsequent operators to use this right to require an operator to share their apparatus with them. That is a separate matter for commercial discussion. Similarly, we do not think that an operator who is granted a right to share their apparatus, should automatically be able to effectively share their Code rights with other operators, although we acknowledge that a site provider may agree for them to do so.

4.20. The sharing right we are introducing in paragraph 3 of the Code is therefore a ‘bare’ right to share, which - if agreed or imposed - solely gives an operator who has installed or is maintaining apparatus on land permission to share that apparatus with others. Any additional terms that may be needed to give effect to this right - for example, the circumstances in which another operator will be permitted to access the land - will be a matter for the parties to negotiate through additional terms or to ask the courts to impose. In this context, we note that there are already numerous agreements in place between independent infrastructure providers and landowners, which work effectively to permit apparatus sharing on a wide scale^{[footnote 9]}.

Issue 3: Upgrading and sharing apparatus installed before the 2017 reforms

Context

4.21. The automatic rights to upgrade and share apparatus only apply to Code agreements completed after the 2017 reforms came into effect. This means a significant proportion of the UK’s existing networks^{[footnote 10]} cannot be upgraded or shared unless express rights permitting this have been agreed.

4.22. We therefore wanted to understand respondents’ views on whether operators should be given any specific automatic upgrading and sharing rights in relation to apparatus currently excluded from paragraph 17 of the Code due to the date of the Code agreement and/or when it was installed.

4.23. We believe that introducing an automatic right to upgrade and share apparatus could have particular benefits for fixed networks, of which an estimated 80% were installed prior to the 2017 Code reforms.

4.24 We therefore considered either:

• applying the existing paragraph 17 automatic upgrading and sharing rights to old Code agreements concluded before the 2017 reforms, noting that the conditions relating to the automatic rights may change; or

• creating a separate and distinct automatic right to upgrade and/or share apparatus for pre 2017 installations/agreements, which could be subject to different and stricter conditions.

We heard

4.25. Fixed line operators reported particular difficulties relating to their ability to upgrade their own and share other operators’ networks. In many cases, fixed line apparatus (such as the ducts which carry fibre and cables) was originally installed for the purpose of telephone landlines. Agreements relating to these installations are likely to have been made in a variety of ways. Difficulties in tracing such agreements, particularly where the ownership of land is likely to have changed several times or where part(s) of the land may have been sold and is now registered under a different title number(s) can result in prohibitive time and costs for operators when attempting to enter into a further Code agreement which would give them rights to upgrade and/or share apparatus. These difficulties are compounded by the fact that, in many cases, operators may be unable to identify the current owner of the land under which such apparatus is situated. Consequently, fixed line operators are rarely sharing their pre-2017 networks.

4.26. Site providers had particular concerns about the retrospective application of automatic upgrading and sharing rights. Some site providers, including responses from the emergency services, raised points about possible implications for health and safety requirements at their sites, due to the potential for telecoms equipment to interfere with services’ own equipment. Network Rail highlighted that retrospective rights may impact its ability to safely and efficiently operate the railway network.

4.27. Some professional bodies and other stakeholder groups raised concerns about the implications for contract law and the rural fixed line wayleave framework of any changes. Instead, the commercial relationship was believed to be better served by letting operators and site providers come to an agreement on rights to upgrade and/or share through negotiations.

4.28. Respondents suggested a range of additional conditions that may be applied to retrospective automatic rights to upgrade and share should they be introduced. We have taken these into consideration in our response.

Government response

4.29. We have concluded that restricted rights to upgrade and share apparatus currently excluded from paragraph 17 of the Code should be introduced in certain circumstances. In reaching this conclusion we have carefully considered the public benefits of introducing this right, and how it should be framed to provide adequate protection for landowners. Given the retrospective nature of this change, we have concluded that the right it introduces should only be available where exercise of the right will have no material impact on the owner or occupier of land.

4.30. We have given particular consideration to whether this right should be available in cases where there is no current Code agreement in place or available for reference due to the length of time that has passed since the apparatus was originally installed. This was specifically in light of the difficulties in upgrading and sharing older apparatus outlined above.

4.31. We think it is reasonable for the new right to be available in these circumstances, given its limited scope i.e. it will only be applicable where apparatus is installed underneath the land. In addition the protection provided by the fact that operators who exercise this right are not permitted to enter private land under which such apparatus is situated without authorisation to do so, is particularly relevant in these cases. If an operator needs to obtain access to the land, it will remain necessary for them to request and obtain a Code agreement before doing so. In this situation, the paragraph 17 rights would automatically become available and allow upgrading and sharing activity which is within the scope of paragraph 17.

4.32. In developing our proposals, we also took into account the fact Ofcom has introduced further measures to address ‘significant market power’ in the fixed-line network, which specifically requires Openreach to share access to its duct and pole network with other providers. It is important that this regulated remedy is as effective as possible.

4.33. We therefore intend to introduce an automatic right for operators to upgrade and share apparatus which is currently excluded from paragraph 17, regardless of when it was installed and, for pre-29 December 2003 apparatus, whether or not there is a current Code agreement in place, providing the following specific conditions are satisfied:

• the apparatus must be situated under land

• any activity required to upgrade or share the apparatus can be carried out without accessing private land, unless an agreement allowing such access is already in place; and

• the upgrading and sharing will have no adverse impact on the land and will impose no burden on anyone who has an interest in the land under which the apparatus is installed, which includes anything that has an adverse effect on the enjoyment of the land or causes loss, damage or expense

4.34. Exercise of the above right will be subject to detailed notice conditions which will require the operator to place a notice on a conspicuous object on any land where works will be taking place at least 21 days before the upgrading or sharing activity takes place.

4.35. These new rights are significantly narrower in scope than the automatic rights to upgrade and share in paragraph 17 of the Code. Given their retrospective nature we think this is appropriate. We have taken into account points raised by respondents to the consultation regarding issues such as compensation and health and safety concerns in relation to these rights, but believe the limited new rights proposed are sufficiently narrowly drawn to avoid creating difficulties in those areas.

Expired agreements

Issue 1: Different routes to renewal

Context

5.1. When a Code agreement comes to an end, the rights contained in that agreement usually remain in place unless and until:

• (i) it is formally terminated, or

• (ii) it is renewed by the parties by entering into a new Code agreement. We refer to these as ‘renewal agreements’. A renewal agreement can be reached consensually between the parties, or imposed by the courts in cases where an agreement cannot be reached.

5.2. The 2017 reforms introduced clear procedures relating to the termination and renewal of expired Code agreements. These are dealt with in Part 5 of the Code. However, Part 5 does not apply to all Code agreements. Leases that are regulated by other statutory frameworks are specifically excluded, and the courts have also held that Part 5 cannot be used in certain circumstances where there is no written evidence of continuing Code rights.

5.3. Since the 2017 reforms came into force, there has been disagreement about how Code agreements not covered by Part 5 should be treated on expiry, with a number of cases being brought before the courts. The position in relation to expired Code agreements regulated by other statutory frameworks has been clarified. But there continues to be uncertainty about the position of these and other expired agreements and how operators can either renew those agreements and/or obtain new Code rights.

5.4. We believe that the present situation on expired Code agreements does not reflect the policy aims of the 2017 reforms. When those reforms were introduced, we were clear that we did not think they should have retrospective effect. By this, we meant that the new rights and protections introduced by the reforms should not be automatically extended to existing and ongoing Code agreements.

5.5. We believe it is important that all Code agreements, including new agreements and renewal agreements, reflect the new Code, and its framework of rights and protections, as closely as possible. This will ensure there is certainty and consistency in relation to all Code agreements, throughout the United Kingdom and deliver the smooth transition to the new Code that was originally intended.

5.6. Problems with the existing procedure for renewing Code agreements is creating particular problems in relation to mobile networks. For instance, one operator is preparing to add 5G equipment to almost half of their 14,000 sites with others preparing to upgrade existing 4G sites to make them 5G ready. It is important that, when Code agreements for existing sites expire, or are about to expire, operators are able to renew those agreements quickly and in accordance with the reformed Code framework (including paragraph 17 rights to upgrade and share apparatus) in order to optimise the use of existing sites and adapt 4G networks to 5G.

We heard

5.7. Responses were as a whole fairly evenly split between those who agreed that Part 5 should be available for all expired Code agreements and those who disagreed. Most operators agreed with this proposal, whereas most landowners disagreed.

5.8. There was also a fairly even split between those who considered that Part 4 of the Code should be available for some expired Code agreements and those that did not. A majority of operators agreed with this proposition, whereas a majority of landowners disagreed.

Government response

5.9. Our overarching policy aim is to ensure that the legislative framework contained in the reformed Code provides a cohesive framework to underpin negotiations for all agreements to confer Code rights, whether these are entirely new agreements, or renewal agreements.

5.10. We will therefore bring forward provisions to amend legislation that applies to Code agreements currently excluded from the scope of Part 5 so that the procedures for dealing with any renewal dispute, and the terms of any new Code agreement (including any financial terms) imposed will be more closely aligned to Part 5^{[footnote 11]}, where the main aim of that agreement is to confer Code rights. In England and Wales, this means we will introduce changes to the Landlord and Tenant Act 1954 ‘(the 1954 Act). Equivalent changes will be made to the Business Tenancies Order (Northern Ireland) 1996 (‘the BTO 1996’) to ensure consistency across the UK^{[footnote 12]}.

5.11. These changes will ensure that while the procedure and framework is more closely aligned to Part 5, in so far as the renewed agreement will relate to Code rights, other statutory provisions and protections provided for by the 1954 Act or the BTO 1996 will be retained.

5.12. The changes we intend to make will include transferring jurisdiction for the resolution of disputes under the 1954 Act from the County Court to the First-tier and Upper Tribunal, who deal with all other Code cases. These changes will not be needed in Northern Ireland, where BTO 1996 disputes are already dealt with by the Lands Tribunal.

Renewals where an operator is occupying land but cannot use renewal procedures

1. Where an operator is occupying land under a previously expired Code agreement and is currently unable to renew that agreement because they do not have continuing Code rights, our changes to the definition of an occupier, where an operator is in sole occupation of land will enable that operator to seek a new Code agreement under Part 4^{[footnote 13]}.

Issue 2: Timescales for disputes relating to renewals

Context

5.14. Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 currently requires the court to decide an application for a new Code agreement within six months of the application being received. There is no similar provision for cases which deal with the termination or renewal of Code agreements.

5.15. We consider that the statutory framework should allow disputes to be dealt with as quickly and efficiently as possible, noting that matters relating to the administration of justice are outside this Department’s area of responsibility. As part of this consultation, we therefore looked at the regulation referred to above, to consider whether and how it might be extended to disputes relating to the renewal of Code agreements.

5.16. The majority of respondents, among both operators, landowners and other groups, agreed that renewals cases should be heard within six months.

Government response

Timescales for Code disputes

5.17. The length of time it takes for disputes to be resolved was a relevant issue in a number of points raised in the consultation, including Alternative Dispute Resolution; the possible introduction of fast track procedures; and the procedures for non-responsive occupiers, which are discussed above.

5.18. In considering possible changes relating to timescales for determining disputes, we therefore looked at the issue of time limits in the context of all disputes relating to the Code, and not just the position for renewal disputes.

5.19. To try and address issues regarding the time it takes for Code disputes to be dealt with, we will bring forward amendments to the legislation so that all disputes relating to Code agreements can be started in either the First-tier Tribunal or the Upper Tribunal.

5.20. The Ministry of Justice and HMCTS will then work on any practice directions needed to ensure that cases are brought before the most appropriate tribunal. This change will ensure that Code disputes can be more evenly distributed across the tribunals, enabling greater flexibility in the administration of justice, and helping straightforward cases to be dealt with more quickly.

5.21. We will also bring forward amendments to the current legislation so that the Secretary of State is able to amend the time limits governing the length of time that it takes a court to determine various types of cases brought under the Code. This will provide sufficient flexibility for us to revisit the issue of dispute time limits when the reforms contained in the Bill have come into effect.

Issue 3: Interim arrangements for renewal negotiations

Context

5.22. If the parties to an expired Code agreement are unable to agree on the terms of any renewal agreement, then either party can apply to the court asking it to decide whether a renewal agreement should be imposed, and if so, what the terms of that Code agreement should be.

5.23. The Code currently provides that where this happens, the site provider can apply to a court for an interim order specifying the amount of rent the operator should pay them until the case is determined. However, there is no reciprocal provision for operators. There is also no provision for either party to ask for any other (non-financial) terms to be imposed on an interim basis.

5.24. To address this, we proposed:

• introducing a procedure permitting either party to request an interim order in relation to a request for a renewal agreement

• where a renewal agreement is subsequently imposed, permitting the court to backdate any new financial terms of that Code agreement to the date that the request for an interim order was made

We heard

5.25. Most respondents agreed that interim orders should be available for renewals. This included the vast majority of operators, while most landowners disagreed.

Government response

5.23. In reaching our response we took into account the fact that interim orders may be sought in relation to new Code agreements. We are keen to ensure that, as far as is possible, disputes relating to renewal agreements can be dealt with as efficiently and flexibly as those for new Code agreements, in acknowledgement of the important role that being able to use these sites effectively plays in delivering and improving services to consumers across the UK.

5.24. We believe that, where the parties to an expired Code agreement are unable to agree what the terms of a renewal agreement should be, and the matter is being brought before the courts, then - as a matter of fairness - both parties should have equal opportunity to ask the court to impose modified terms on an interim basis. We also think the ability to seek interim terms should not be limited to financial arrangements, as there may well be circumstances in which changes to other terms are a high priority for either party. We will therefore bring forward provisions to amend the current legislation so that:

• Where an application to the courts is made in relation to an expired Code agreement, either party will be able to apply for an interim order pending the resolution of that dispute

• The scope of interim orders will no longer be limited to changing the financial terms of a Code agreement. Instead, modification to any terms of the expired agreement may be applied for

Annex A: Consultation questions

Obtaining and Using Code Agreements

Issue 1: Negotiations: lack of engagement and collaboration

• Question 1: Do you agree with the assessment of the main problems relating to negotiations for and the completion of new agreements set out in Chapter Two of the consultation document?

• Question 2: Do you have any suggestions of other legislative or non-legislative changes that might support faster and more collaborative negotiations other than those discussed in Chapter Two of the consultation document? In answering this, please note that we do not intend to revisit the statutory valuation regime.

• Question 3: Do you think there should be a statutory process available to look at cases where an operator has failed to comply with the Ofcom Code of Practice? If such a process was introduced:

• Question 3(a): Do you think that the process should deal with any failure to comply, or exclude minor or technical breaches, or focus on a specific range of issues?

• Question 3(b): Do you think the Ofcom Code of Practice would need to be reviewed to provide more specific guidelines? If so, what might these helpfully include?

• Question 3(c): What remedies do you think should be available under any statutory process? For example: should these be limited to putting right the failure to comply, or should financial penalties be available in some circumstances?

• Question 4: Do you think the court should have specific jurisdiction to take into account failures to comply with the Ofcom Code of Practice during the negotiation stage? For example, in awarding costs or providing some other remedy? If the court had this jurisdiction:

• Question 4(a): What should be the purpose of such a process? Should the court's main aim be to ensure that parties comply with the terms of agreements? Or should it aim to punish breaches already made and to deter future breaches?

• Question 5: Do you think Alternative Dispute Resolution (ADR) would assist in resolving disagreements where e.g. the disputes points are not related to legal interpretation? If so:

• Question 5(a): What sort of situations do you think might be suitable for bringing to ADR?

• Question 5(b): Which type or types of ADR (e.g. mediation, arbitration, other) do you think could be best 10 suited for each of these situations?

• Question 6: If an ADR scheme was introduced do you have any comments on how ADR should work in practice? For example:

• Who should pay the costs of ADR?

• Should both parties have to consent to its use?

• Do you envisage any procedural issues and how could these best be solved?

• Do you think parties should be required to consider / attempt some form of ADR before bringing a case before the court, or before being allowed to continue with it, if the court thinks that ADR should be attempted first?

• Do you think the court should have powers to take into account any refusal or failure to engage with ADR. For example, in awarding costs?

• Question 7: Do you think there are situations where a fast track application to a court should be available, bearing in mind the implications of this in terms of judicial resources and the listing of other cases? If so:

• Question 7(a): In what situations do you think a fast-track procedure should be available and why?

• Question 7(b): Should such cases be dealt with by the Upper Tribunal or by a different court/tribunal, for example, the First-tier Tribunal?

• Question 7(c): What time limits would be required for a fast track procedure to address difficulties with the current timescales for hearings and how do we ensure these provide sufficient opportunity for each party to respond?

• Question 7(d): Do you think any additional remedies would need to be available to the court in the situations you describe?

• Question 7(e): How can we ensure that any fast track procedures give priority to the most appropriate cases?

Issue 2: Non-responsive or unidentifiable occupiers

• Question 8: Do you think our assessment of the impact of non-responsive occupiers and landowners on network deployment is accurate? Please provide any available evidence demonstrating the impact of failures to respond on the pace, scale and cost of deployment as well as any other impacts.

• Question 9: Do you think there are any other ways that we can encourage unresponsive occupiers and landowners to engage with requests for Code rights (further to those already included in the Telecommunications Infrastructure (Leasehold Property) Bill)?

• Question 10: Do you think there should be a streamlined process for operators to secure Code rights in cases where an occupier (or other relevant party) fails to respond to a request for these rights? If so:

• Question 10(a): Do you think this kind of streamlined process should be administered by the Upper Tribunal or by a different court?

• Question 10(b): What sort of timescales do you think would be appropriate for this kind of process?

• Question 10(c): What kind of measures and safeguards do you think such a process would need to include in order to maintain a balance between the public interest in network deployment, and the private rights of occupiers and landowners? (for example, - how many times, and at what intervals, should the operator have to request the rights before they can access the procedure; how long should the occupier have to respond etc).

Issue 3: Who can agree to grant Code rights?

• Question 11: Do you agree that if a Code operator is in occupation of land, it should be:

• the person who owns or has control over the land; or

• the person who granted the rights allowing that operator to be in occupation; or

• Someone else, and if so, whose agreement should be required for any new or renewal agreement?

• Question 12: Are there any other situations where you think it may be appropriate for someone other than (or in addition to) the occupier of land to be able grant Code rights?

Issue 4: Enforcing Code agreements and terms

• Question 13: Are you aware of, or have you experienced, any difficulties relating to compliance with the terms of a Code agreement? If so:

• Question 13(a): Was paragraph 93 - or any other provision - of the Code the cause of those difficulties?

• Question 13(b): How were those difficulties dealt with and was the outcome satisfactory?

• Question 14: Are there other ways that you think we can encourage compliance with the terms of Code agreements? For example:

• Could Alternative Dispute Resolution provide a route for dealing with compliance issues?

• Should there be scope for Code agreements to include financial penalties for non compliance?

Issue 5: Modifying agreements

• Question 15: Do you think that operators and site providers should be able to ask a court to impose new, additional or modified rights or terms after an agreement has been concluded, but before it expires? If this was permitted:

• Question 15(a): Do you think the circumstances in which this option is available to site providers and operators should be limited to maintain an appropriate balance between the need for certainty and allowing a degree of flexibility? For example: should this option only be available where an operator needs an additional right to those contained in the original agreement.

• Question 15(b): In deciding whether to impose additional, new or modified rights or terms, should a court apply a similar test to the one in paragraph 21, as used in relation to requests for new Code agreements? How (if at all) should this test be modified in this context?

• Question 15(c): Should a court take other, or additional factors into account in deciding whether to grant any new or additional Code right sought by a party?

• Question 15(d): If a court were to decide to impose a new or additional Code right, should the terms be based on the existing Code framework, or should additional / other factors be taken into account?

• Question 15(e): If a court were to decide to impose new or additional Code rights, should the calculation of any consideration or compensation payable be based on the existing provisions, or on a different basis?

Rights to upgrade and share apparatus

Issue 1: Automatic rights to upgrade and share apparatus

• Question 16: In what circumstances do you think automatic rights to upgrade and share should be available?

• Question 17: Do you think the current conditions relating to the paragraph 17 automatic rights should be amended? If so:

• Question 17(a): What changes could we make to paragraph 17 that would make the practical application of the automatic rights clearer for operators and site providers?

• Question 17(b): Are there any additional measures we could include to protect the interests and address the concerns of site providers in relation to the automatic rights to upgrade and share? (For example: the introduction of notice requirements, or specific confirmation that automatic rights to upgrade and share are subject to the original terms of the agreement as they relate to notice / access requirements).

Issue 2: Upgrading and sharing rights that may create more than a minimal adverse impact or impose an additional burden on the operator and would therefore not be permitted under paragraph 17

• Question 18: Do you think that a court should be able to impose rights that allow more extensive upgrading and sharing than is permitted under the automatic rights in paragraph 17 in any, or all, of the following situations:

• If the court is imposing a new agreement and such rights are requested?

• If the court is imposing a renewal agreement and such rights are requested?

• If the court is asked to grant new or modified rights to upgrade and share apparatus during the term of a completed agreement? (noting that this would only be relevant if changes permitting modification of an agreement prior to expiry is introduced, and would be subject to any safeguards put in place for such modifications).

• Question 19: Do you think the court's jurisdiction to impose these rights needs to be expressly stated in the legislation, given that the Upper Tribunal has already held that this is possible?

• Question 20: Do you think the court should be required to take specific factors into account in deciding whether it is appropriate to allow upgrading and sharing rights which are more extensive than those allowed by paragraph 17?

• Question 21: Do you think the court should be required to take any specific factors into account in deciding what the terms relating to upgrading and sharing rights should be?

• Question 22: What additional factors (if any) should be included in the situations described at questions 20 and 21 (the above two questions) to strike an appropriate balance between the importance of upgrading and sharing and the potential impacts on the site provider?

Issue 3: Upgrading and sharing apparatus installed before the 2017 reforms

• Question 23: What would be the specific impacts of creating an automatic right to upgrade and share apparatus in relation to agreements completed before 28 December 2017? Please provide details of all impacts including those on site providers, on coverage and connectivity, and on wider public considerations (such as reducing any disruption from unnecessary works or the impact on the environment of additional installations).

• Question 24: Do you think operators should have any automatic rights to upgrade and share apparatus relating to agreements completed before the 2017 reforms came into effect, where there is a strong case that this would be in the wider public interest and there would be no, or very little, impact on the site provider? If these rights were introduced:

• Question 24(a): Do you think they should be subject to the same conditions as the paragraph 17 automatic rights, or should a different and more stringent set of conditions apply to protect site provider interests?If you think different conditions should apply, what might those conditions be?

• Question 24(b): Are there any other measures we could introduce that would secure the benefits of upgrading and sharing apparatus installed under pre-December 2017 agreements, while protecting the interests of site providers?

Expired agreements

Issue 1: Different routes to renewal

• Question 25: Do you agree that the Part 5 provisions should apply to all agreements once the original term of the agreements expires or has expired? Is there any reason why they shouldn't? If Part 5 provisions are applied to all expired agreements:

• Question 25(a): Do you think any special provisions should be included for agreements that were previously subject to different statutory regimes to ensure that any protections are preserved (where these do not conflict with the framework of the Code)?

• Question 26: Do you think there are any circumstances in which it would be more appropriate for an operator to use the Part 4 (new agreement) process to obtain a new agreement, rather than the Part 5 (renewal agreement) process?

Issue 2: Timescales for disputes relating to renewals

• Question 27: Do you think that there should be a statutory requirement for disputes relating to the modification of an expired agreement to be heard within six months of the date the application is made?

• Question 28: Do you think that there should be a statutory requirement for disputes relating to the termination of a Code agreement to be heard within six months of the date the application is made? If so:

• Question 28(a): What would be the benefits of a statutory time limit in relation to these disputes being introduced?

• Question 28(b): What might be the drawback of a statutory time limit in relation to these disputes?

Issue 3: Interim arrangements for renewal negotiations

• Question 29: Do you think operators and site providers should be able to seek interim orders in relation to renewal agreements? If so:

• Question 29(a): What should the interim agreements cover (Code rights, pricing, etc)?

• Question 29(b): Are any safeguards necessary to prevent abuse of the process?

• Question 30: Do you think a court should be able to backdate the financial terms of a renewal agreement to the date that a request for an interim order is made?

• Question 31: Are there any other ways you think we can help ensure that negotiations for renewals are dealt with in a timely and collaborative manner?

Annex B: List of respondents

There were a number of individuals who responded to the consultation, who have not been named. However, the following is a list of the organisations and representative bodies who responded:

- 4M Properties Group	- Lee Mercer Consultancy Ltd
- Agricultural Law Association	- Local government Association (LGA)
- Airband	- London Borough of Camden
- Airwave Solutions Ltd	- London Borough of Croydon
- AMSY	- London Borough of Enfield
- AP Wireless	- London Borough of Hackney
- ARC Partners	- London Borough of Haringey
- Arqiva	- London Borough of Lambeth
- Atlas Tower Group	- London Borough of Southwark
- Avison Young	- London Fire Brigade
- Barnet Council	- Manchester City Council
- Batcheller Monkhouse	- Metropolitan Police Service
- Beacon Comms	- Mobile Broadband Network Limited (MBNL)
- Bidwells LLP	- Mobile UK
- Birketts LLP	- Mono
- Birmingham Council	- Moorings Freehold Ltd
- Brent Council	- National Farmers Union (NFU)
- Bristol Water Plc	- National Farmers’ Union Scotland
- Britannia Towers	- National Fire Estates Group
- British Property Federation (BPF)	- National Housing Federation
- Broadband Stakeholder Group	- National Parks England
- BT Group	- National Residential Landlords Association
- Campaign to Protect Rural England (CPRE)	- National Trust
- Canal & River Trust	- Network Homes
- Carter Jonas	- Network Rail
- Catalyst Homes	- Newcastle Council
- Cell: cm	- Newham Council
- Cellnex	- North of Tyne Combined Authority
- Central Association of Agricultural Valuers (CAAV)	- O2 Telefonica
- City of London Council	- Ofcom
- City of London Law Society	- Office of Rail and Road
- City of Wolverhampton Council	- Openreach
- City of York Council	- Paul Wheelhouse MSP, Minister for Energy, Connectivity and the Islands
- CityFibre	- Peak District National Park Authority
- Clarion Housing Group	- Phone Mast Company
- Clarke Telecom	- Pinsent Masons LLP
- Clarke Wilmott	- Powells Rural
- Cluttons LLP	- Powis Hughes
- CMS Cameron McKenna Nabarro Olswang LLP	- Protect & Connect
- Colt	- Roehampton Court Ltd
- Community Fibre	- Royal Borough of Kensington and Chelsea
- Compulsory Purchase Association	- Royal Institution of Chartered Surveyors
- Cornerstone Telecommunications Infrastructure Limited (CTIL)	- Save Us Now
- Country Land and Business Association (CLA)	- Savills
- Countryside Alliance	- Savills (UK) Ltd
- DAC Beachcroft LLP	- Scientists Warning Europe
- Dalcour Maclaren	- Scottish Futures Trust
- David R Boyne Property Solutions	- Scottish Land & Estates
- Derbyshire Constabulary	- Scottish Road Works Commissioner
- DMSL	- Shamash Consulting Ltd
- Dolomite	- Shared Access Ltd
- DWF Law LLP	- Shepherd and Wedderburn LLP
- Ealing Council	- Shoosmiths LLP
- EE	- Solicitors Regulation Authority
- Electrosensitivity UK	- South London Partnership
- English Heritage	- Southern Housing Group
- Eversheds Sutherland	- Speed Up Britain
- Farmers’ Union of Wales	- SSE Telecoms
- Fisher German	- Stone King LLP
- Foot Anstey	- Strutt and Parker
- Freshwave	- techUK
- G Network	- Telecom Portfolios
- Galbraith Group	- Telecoms Property Consultancy Limited
- Gerald Eve LLP	- The National Smaller Housing Association Group
- Gigaclear	- The Virtual Workforce Company Ltd
- GLA	- Thornton Estates
- GOS Consulting	- Three
- Greater Manchester Combined Authority	- Towerhouse LLP
- Harlequin Group	- TPCL
- Hub Telecoms Consultancy	- Trowers & Hamlin LLP
- Humberside Fire and Rescue Service	- Truespeed
- Hyperoptic	- UKCTA
- INCA	- Ulster Farmers’ Union
- Islington Council	- Virgin Media
- ISPA	- Vodafone
- Kent Fire and Rescue Service	- Vorboss Ltd
- Kingston Council	- Waldon Telecom Ltd
- Knight Frank	- Wessex Internet
- L&Q Housing Association	- Westminster Council
- Lambert Smith Hampton	- Winckworth Sherwood
- Lands Tribunal for Scotland	- Wireless Infrastructure Group
- Landscapes for Life	- WM5G
- Law Society

1. In this document it will be referred to either as a Code agreement or the granting of Code rights ↩

2. Code operators are network and infrastructure providers who have been granted Code operator status by Ofcom under section 106 of the Communications Act 2003. References in this document to an operator are to a Code operator, unless otherwise stated ↩

3. In the Code the landowner or person who is able to grant Code rights is referred to as an occupier and this is the term that we will use throughout the rest of this document. ↩

4. A site provider means a person who has granted Code rights in relation to land, either through a consensual agreement or through an agreement imposed by a court. ↩

5. See paragraph 5.8 below for further information about proposals relating to Tribunal time limits ↩

6. With the exception of cases concerning non-responsive or unidentifiable occupiers, as set out in the following section. ↩

7. This was, however, raised as a concern relating to upgrading and sharing previously installed apparatus. Our proposals on upgrading and sharing are dealt with below. ↩

8. E.g. the person who entered into the original lease with the operator ↩

9. These agreements will not be affected by the changes introducing a right to share as a distinct Code right ↩

10. In addition to apparatus subject to pre-2017 Code agreements, this includes apparatus installed prior to 29 December 2003 (when the Electronic Communications Code was introduced by the Communications Act 2003). ↩

11. Part 5 of the Code applies in all cases (subject to agreements specifically exempted) where Code rights have ceased to be exercisable under the terms of the original agreement ↩

12. There is no equivalent legislation in Scotland. All agreements conferring Code rights are subject to Part 5 of the Code on expiry. ↩

13. See Issue Three in the section on obtaining and using Code rights ↩