Consultation outcome

Regulations to implement the Telecommunications Infrastructure (Leasehold Property) Act - government response

Updated 24 June 2022

Ministerial Foreword

Fast, reliable and secure connections are the cornerstone of a thriving economy and society. Ensuring every home can access these connections is a priority for this government.

Gigabit-capable connections will be the enabling infrastructure of the 21st century, and the economic, social and cultural impacts of improving digital connectivity are vast. But these benefits can only be realised to their fullest extent if they reach every home. The UK is making great progress on this task, and I am delighted the UK has achieved 68% gigabit broadband coverage, up from just 8% in 2019. However, more can be done.

It is for this reason that we passed the Telecommunications Infrastructure (Leasehold Property) Act 2021,^{[footnote 1]} which will support those living in blocks of flats and apartments (also known as multi-dwelling units, or MDUs) to access broadband services.

The aim of the Act is to encourage landowners^{[footnote 2]} to respond to requests for access issued by network operators^{[footnote 3]}. These access rights are essential for the delivery of connectivity as operators are unable to deploy their services without first obtaining permission, either from the landowner or a court, to install their equipment.

The Act does this by creating a new route through the courts that operators can use to access blocks of flats and apartments if a landowner is repeatedly unresponsive to requests for access. The Act will prevent a situation where a leaseholder is unable to receive a service due to the silence of their landowner.

Like my predecessor who took this Act through Parliament, I do not take the responsibility of allowing an operator into a property without the permission of that property’s owner lightly. At all times, government policy in this area works to keep a proportionate balance between public benefits and the rights of individual landowners. To ensure this is achieved, every detail of the process created by the Act must be carefully scrutinised and considered, to make sure it works exactly as intended. The government ran a consultation on the implementing regulations of the Act in order to do just that.

The regulations which the consultation sought views on concern issues including the terms which will set out how, where and when operators may exercise rights granted under this new process. They will also set out the rights and responsibilities of landowners.

This document sets out the government’s response to that consultation, and our current proposals for the regulations necessary for the new process under the Act to take effect. The regulations themselves will be laid before Parliament as soon as parliamentary time allows, and once passed, the new process will take effect.

The electronic communications apparatus which underpins our online activity may not often make the headlines or attract national attention, but the importance of digital infrastructure to our lives is undeniable. Indeed, as the pandemic has changed the way our lives so profoundly in so many ways - from talking with loved ones via video call, to working from home, to online shopping - our reliance on digital infrastructure is clearer than ever before.

Julia Lopez MP

Minister of State for Media, Data, and Digital Infrastructure

Overview

The Telecommunications Infrastructure (Leasehold Property) Act (‘the Act’) gained Royal Assent in March 2021.

The Act amended the Electronic Communications Code (‘the Code’). The Code is the framework that underpins agreements between electronic communications network providers (‘operators’) and landowners with regards to the deployment of digital infrastructure under, on or over land.

The Act added Part 4A to the Code to create a new, bespoke process within the courts to be used in instances where: a) a leaseholder within the property (‘lessee in occupation’) has requested a service to be provided; b) the operator is unable to provide the service to the leaseholder without gaining access rights from the landowner; and c) repeated notices to the landowner have failed to receive a response. As passed, the scope of the Act includes only multi-dwelling buildings - such as blocks of flats or apartments.

If an operator encounters these circumstances, once the Act takes full effect, they may make an application under Part 4A to the First-tier Tribunal in England and Wales or the Sheriff court in Scotland to acquire time-limited Code rights to the property, but must also satisfy specific conditions set out in the legislation.^{[footnote 4]} These conditions include the issuing of notices to the landowner over a set period, and providing sufficient time between those notices to ensure the landowner can respond. By responding to a notice at any time before a Part 4A application is made to the court, a landlord will come out of scope of this policy, and rights can no longer be granted under Part 4A.

The time-limited Code rights granted under Part 4A will provide an operator with the rights required to provide the infrastructure necessary to connect the individual who made the service request and - providing there will be no additional burden on the landowner - to any other residents of the building. This will allow all residents within the property to benefit from the installation of better broadband.

The Act - like the rest of the Electronic Communications Code - was designed to create a balance between the rights of landowners and operators.

The consultation

The consultation ran between 9th June 2021 and 4th August 2021 and sought input on the Act’s accompanying regulations. The regulations will include the terms under which the time-limited Code rights are conferred on operators following a successful application in the courts, how these rights may be exercised, the properties in scope of the Act, and the length of time that the Code rights apply.

The consultation made proposals which were divided into three sections, found in sections 4-6 of the consultation document:

• Section 4: Terms to accompany Part 4A time-limited Code rights (acquired by operators following a successful application at the court).
• Section 5: The process for making an application to the court and the duration of the Code rights.
• Section 6: Extending the scope of Part 4A

There were 12 responses to the consultation, including organisations representing landowners, operators, professional bodies and a local government partnership. A list of the organisations and individuals who responded can be found in Annex.

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

The government is grateful to all those who responded and expressed views on the proposals.

Responses

Terms to accompany Part 4A time-limited Code rights

4.1 Providing the landowner with details of the works to be carried out.

We asked:

Do you agree that the operator should send the landowner the details of planned works by recorded delivery?

Do you agree that the notice should be sent to the landowner no less than 5 working days prior to the installation taking place?

Do you agree that the operator should also affix a notice in the common area of the building detailing the works to be carried out?

Context

An application for a Part 4A order may only be made in situations where a landowner has failed to respond to repeated requests for access rights.

The government proposed that once an order has been made, the operator should continue to provide information to the landowner - via their registered address - of the works they will undertake in the property. This will ensure that, at all stages, the rights and interests of the grantor continue to be acknowledged and provide an opportunity for the landowner to engage with the process.

Although the landowner has been “unresponsive”, it is still important that attempts are made to ensure that they are informed of changes made to their property, and given an opportunity to have input into those decisions.

We heard

Eight of the twelve respondents agreed that information should be sent to the landowner by recorded delivery to keep them informed of proposed works that are being carried out. A number of respondents noted however that the proposed regulations should specify what details of the work must be provided. For example, it was noted that details such as plans for the route of necessary ducts or cabling would be valuable so the landowner can fully comprehend the proposed routes, and evaluate the possible impact and consequences the work may have on their property.

Respondents also indicated that operators are likely to require access to the property for surveying purposes, to develop the plans of the works. The regulations will need to recognise that the court imposed agreement will need to be put in place prior to survey works so operators have the necessary access rights to carry out the survey. The court imposed agreement may not be able to include detailed plans and method statements because surveys will not have taken place at this stage.

There were mixed responses raised regarding the suggested timescale which would require an operator to give notice to the landowner no less than five working days prior to carrying out works on the land in question. Whilst some respondents - including broadband providers and landlords - agreed that timescale is reasonable, others - among them a local authority partnership, property and asset management and professional bodies - were concerned that this timescale is not enough for the landowner to understand the planned works and potential consequences for their building. Suggestions were made for the regulations to give landowners as much notice as possible to ensure that they can comply with the requisite of the Part 4A order. Suggestions were also made that the timescale should be 10 working days, or no less than 2 months.

A mix of operators and landowners agreed that the operator should affix a notice in the common area of the building detailing the works to be carried out, and in the event that it is not possible, the regulations should allow for a notice to be affixed to a prominent place outside the building. There were concerns however that the costs of attending the site to affix a notice are not insignificant and that there would be additional burden on the operator. It was suggested that operators should affix a notice in a common area on the day the works commence with contact details if residents have concerns or queries.

Government response

From its outset, the Act has sought to maintain the balance between the rights of operators and landowners which underpins the wider Electronic Communications Code. The government believes it is important that landowners, who may have been unresponsive previously, are still provided with details of the works which are to be undertaken in the property, and given an opportunity to influence how any installation is to take place. However, we are also clear that there should not be any undue delay to the works being carried out.

Where the notice is sent by post, the government intends to require operators to send the landowner the details of planned works by recorded delivery. A recorded delivery is important to ensure as far as possible that details of the works are captured and sent securely to the landowner to make them aware of changes being made to their property. A recorded delivery will require a signature upon delivery so a record of confirmation is sent to the operator.

After considering the responses to the consultation, the government intends to include in the regulations a requirement that the operator must send the landowner the details of planned works by recorded delivery no less than five days before the date the work is scheduled to commence. That notice should specify, as far as reasonably possible, all details of the work to be carried out.

We believe that specifying this requirement of a five day notice period in regulations provides a valuable opportunity for the landowner to engage with the operator^{[footnote 5]} and support them to ensure that installations are carried out as effectively as possible.

The government also intends to include in the regulations that the operator should affix a notice in a prominent location in the common area within the building detailing the works to be carried out. We acknowledge the concerns raised by some respondents that this requirement may be burdensome. However, the government considers it important that - in situations where contact by any other means has not been possible - a further attempt is made to reach a landowner or other individual with rights over a property. We also consider that notices will provide information to residents, and potentially encourage others to enquire about receiving a new broadband service.

4.2 Obtaining necessary consents, permits, licences, permissions, authorisations or approvals for the works to be carried out.

We asked:

Do you agree that placing the burden on the operator to ascertain all necessary consents, permits, licences, permissions, authorisations or approvals is a sensible approach?

Are there any specific consents, permits, licences, permissions, authorisations or approvals that you believe would benefit from being specifically required in regulation?

Context

As with all installations - either through Part 4A or otherwise - operators are required to obtain any consents, permits, licences, permissions, authorisations or approvals that are necessary for the works to be carried out. As many of these may be building or location specific, and may vary across different regions of the UK, the government does not propose to place in regulation any specific list.

The consultation proposed that the government should instead place a requirement on the operator to ensure that they have undertaken the necessary investigations to ascertain what consents, permits, licences, permissions, authorisations or approvals they require to undertake the works, and to obtain all such authorisations as are legally required.

We heard

It was agreed that placing a requirement on the operator to ascertain all necessary consents, permits, licences, permissions, authorisations or approvals is a sensible approach. This is a requirement imposed upon an operator in a wayleave agreement and the City of London’s standardised wayleave agreement^{[footnote 6]} was provided as a use case example. A suggestion was made that the regulations will need to be carefully drafted to ensure that approval from a non-responsive landowner is not deemed to be a ‘necessary consent’ without which the survey or works would be prevented from taking place.

In response to the question regarding whether any specific consents should be required in the regulations, a suggestion was made regarding listed properties, to include the Listed Building Consent to carry out a fixed line fibre installation at the property in question.

Government response

It is important for an operator to gather all the necessary permissions and ensure all procedures are in place for the installation works to progress and to deliver the service requested by a resident. Proceeding without these permissions may, at the very least, cause delays and further complexities for the operator, landowner, and the resident requesting the service.

The government believes it is both important and reasonable to require operators to ascertain all the relevant, necessary consents, permits, licences, permissions, authorisations or approvals necessary for works to be carried out, and as such regulations will require this. We acknowledge concerns raised regarding ‘necessary consent’ and will seek to draft regulations to avoid this outcome.

In response to recommendations regarding whether any specific consents should be required in the regulations, after consideration we consider that it may be appropriate to require that when works are planned for listed buildings, Listed Building Consent to carry out a fixed line fibre installation at the property in question should be required. Some listed buildings are converted into multi-dwelling units and we believe it is important that the right procedures are taken to ensure that property is carefully managed which could affect its character as a building of special architectural or historic interest. We shall keep these requirements under review.

4.3 Giving notice to the landowner (or other specified persons) before entering on the connected land.

We asked:

Do you agree that the landowner and any individual or organisation who has been empowered by the landowner to supervise the property such as a managing agent should be given notice prior to works being carried out?

Do you agree that the operator should provide notice to the residents of their intention to enter the property?

Should managing agents and residents be contacted in the same way as the landowner - e.g. recorded delivery - or would a less formal approach be more appropriate - such as affixing a notice in a prominent location in a common area?

Do you agree that operators should combine their notices with those set out in 4.1 which is to provide the landowner with details of the works to be carried out, and sent no less than 5 working days before entry into the premises?

Context

The government is of the view that while operators will have gained rights to access the property through successful application to the courts under Part 4A, such access should not take place without interested parties being given specific notice of the time and date that it will take place.^{[footnote 7]} This will ensure that all those with an interest in the property are aware when and why other parties will be entering the premises.

We heard

Out of 12 responses, 5 respondents including landowners, operators and a local government partnership, agreed that landowners and any individual or organisation who has been empowered by the landowner to supervise the property - such as a managing agent - should be informed of an operator’s intention to enter a building for the purposes of survey and network installation. Respondents emphasised that this should be for information purposes only, and not require response or agreement.

Concerns were raised that it may be difficult for the operator to establish who the managing agent is if they have not received a response from the landowner and therefore the operator should be required to make reasonable efforts to contact the managing agent such as asking the tenants that request a service for any contact details they have. However if the operator makes reasonable efforts but is unable to establish the correct contact details of the managing agent, this should not prevent them from proceeding with the survey and or works.

A broadband provider suggested that the regulations should require operators to notify managing agents in the same manner as landowners. However, this respondent did not believe it would be proportionate to require operators to give notice to a managing agent or other appropriate body every time they entered the building for individual customer installations, service visits or maintenance work.

5 respondents - among them landowners, operators, a local government partnership and asset managers - agreed that an operator should provide notice to the residents on their intentions to enter the property, in order to keep residents informed of the works that are taking place. It was highlighted from other respondents that an operator will not have the contact details of the other residents within the building to provide them advanced notice of the works. Therefore, where there is a managing agent, notices could be served by that agent to all residents as they will have contact details to enable it to serve rent and service charge demands. It was argued that this would overcome Data Protection issues and avoid the need for the operator to investigate the title to each flat to determine the current owner of the flat. It was highlighted that once an operator has been granted Part 4A rights, they will want to stimulate as much interest as possible in the building and communicate with the residents who did not register interest prior to the rights being conferred. It is in an operator’s interest to distribute letters to residents calling attention to the fact that work will be taking place in the building and encouraging residents to get in touch if they wish to sign up to a service. It was thus argued that this provides a sufficient level of notice and was not recommended to include notice to residents in the regulations.

It was suggested that managing agents and residents should be contacted by both formal and informal means - such as recorded delivery and affixing a notice to a common area - as it is important that a variety of approaches are made to ensure adequate opportunity for all to be informed of the works to be carried out. Respondents suggested that it would place administrative and financial burden on operators to inform the landowner, agent and residents through recorded delivery. A suggestion was made that there should not be a regulatory requirement to send a letter via recorded delivery but the regulation should simply state that operators should notify managing agents through an appropriate channel.

Responses differed regarding operators combining their notices with those set out in 4.1 (which is to provide the landowner with details of the works to be carried out, and sent no less than 5 working days before entry into the premises). Whilst some agreed, respondents highlighted that the details of the works are different to the timing of the works and that these should be separate notices; however combining these notices could be efficient when they are sent to the landowner or managing agent, not the resident. A suggestion was made that the regulatory requirement should be limited to affixing one physical notice inside a common area of the building (or in a prominent place outside, if this is not possible), which would serve the purpose of informing the landowner, managing agent or residents of the proposed works to be carried out.

Government response

After consideration, the government plans to require that the landowner and any individual or organisation who has been empowered by the landowner to supervise the property (e.g. a managing agent) should be given notice prior to the operator accessing the property for any reason other than for the purposes of posting a notice, except in case of emergency. We believe that this will ensure that all parties with an interest in the property are informed of the operator’s intention to enter the building, whether for survey purposes or for network installation. We recognise the potential challenges an operator may face to establish the identity of the managing agent, but continue to consider that if an operator is aware of a managing agent with responsibility for the building, notice should be sent to them.

Regarding residents, the government intends to require operators to provide notice to residents of their intention to enter the property. We believe it is essential that other occupants are informed of the works that are taking place. We recognise the concerns raised that an operator will not have the contact details of all individual tenants but believe that affixing notices in a common area with contact details of the operator, will provide reassurance and suitable awareness of works.

We agree that it is important that a variety of approaches should be taken to ensure there is adequate opportunity for managing agents and residents to be informed of the works to be carried out by the operator. We intend to include a requirement in the regulations that an operator should notify managing agents through an appropriate channel. Regarding notification of residents, affixing a notice in a prominent location in a common area for residents will be sufficient.

The government recognises the concerns raised that the details of the works are different to the timing of the works. However, we believe that combining both notices described in sections 4.3 and 4.1 of this document will ensure that the landowner and residents (and, if relevant, managing agents) are aware of the operator’s intention to enter the property and the details of the works being carried out prior to those works taking place. Additionally, requiring that a copy of the same notice is affixed in a common area will ensure other residents who live in the property are made aware when and why other parties will be entering the premises. We believe that it is appropriate for the notice period for these notices to be the same for each type of recipient - landowner, resident, and managing agent - and that that period should be no less than five days. By combining these notices we believe those with an interest in the property - either as managing agent, leaseholder or resident - will have the fullest possible details of work that is set to commence.

4.4 Limiting operator rights of access to specified times, except in cases of emergency.

We asked:

Do you agree that work should be limited to specific times of day and do you agree with the times that we have proposed?

Do you agree that those times should be allowed to be extended with the consent of the managing agent or otherwise empowered individual or organisation?

Context

In order to avoid disruption to other residents from the works being undertaken at unsociable hours, the government proposed to limit operators’ access times to properties. In the consultation, we proposed that operators may not access the property or start works any earlier than 0930 and that all works should complete by 1830. However, we also proposed that this may be altered with the express agreement of a managing agent or otherwise empowered individual or organisation (such as residents association). We proposed that these restrictions should not apply in cases where emergency access is required.

We heard

It was agreed that works should be limited to specific times of day but some respondents did not agree to the times proposed. Suggestions were made that the timings should be amended to be aligned with those t​​hat many councils permit commercial construction noise (08:00 - 18:00 Monday - Friday and 08:00 - 13:00 on Saturday) or under core hours on working days only (09:00 - 17:00 Monday - Friday) and not Bank Holidays. Respondents also suggested that times should not apply when operators are visiting a resident’s home on their request or if they are required to.

Out of the 12 responses to the consultation, 6 respondents agreed that times should be allowed to be extended with the consent of the managing agent or otherwise empowered individual or organisation. Some respondents were concerned that on the basis of extending the times that this would cause complaints from other residents or that operators will not be able to rely on the managing agents to help efficiently manage their installation. These respondents recommended that the government remove this prescription.

Government response

The government intends to include in the regulations that work should be limited to specific times of the day. After considering the responses to the consultation the government has changed aspects of its proposals and we propose the times of day during which works are permitted should be set from Monday to Friday at 08:30 - 18:00 (except in cases of emergency). We consider this to be an appropriate course of action as it strikes a balance between common times when councils permit construction noise (08:00-18:00), but maintains respect for other residents neighbouring the tenant requesting the service, as neighbours within a block of flats will necessarily be much closer together than in other types of housing. We will keep this position under review.

We intend to include a provision allowing work times to be adjusted with the consent of the managing agent, or an individual or organisation such as residents association which is empowered to fulfil the leaseholders’ requirements. Operators will require written permission from such a body to work outside of these times.

4.5 The manner in which the works are carried out.

We asked:

Do you agree that operators should be required to undertake all works on a ‘least possible damage’ principle?

Do you agree that requiring the operator to nominate a qualified individual to sign off each installation will encourage installations to be completed to a high standard?

Should the individual nominated by the operator to sign off installations have specific qualifications? If so, what qualifications would be appropriate?

Context

The government is mindful that landowners are likely to have detailed knowledge and understanding of the building. However, with a landowner absent - as may likely be the case in circumstances where a Part 4A order applies - operators entering a property will need to take additional care about how they install their apparatus and be mindful of the circumstances under which they have gained access to the property.

As well as complying with all statutory obligations already set out in legislation (such as fire suppression, health and safety), operators need to ensure that when installing their equipment they do so carefully and conscientiously, employing a ‘least possible damage’ principle.

We know that many of the UK’s telecom operators take great pride in the training that they provide to their staff. In the case of works undertaken without explicit consent of the landowner, we think it is important that we make specific provisions that will ensure all works are carried out by appropriate individuals and to a reasonable professional standard.

In order to ensure that works are carried out to the highest possible standard, and in line with all statutory obligations, the government proposed that a suitably qualified individual, such as a supervisor, should formally sign off the works following their completion to confirm that they are safe, the installation has been undertaken correctly and that the works - in their opinion - have been completed to a reasonable professional standard.

We heard

Six respondents, including telecoms operators, professional bodies and landowners, agreed that operators should be required to undertake all works on a ‘least possible damage’ principle. This is a standard requirement in the most standardised wayleave agreements. One broadband provider questioned the terms such as ‘least possible damage’ and ‘reasonable professional standard’ as this may be unhelpful to the overall expectations of the landowners in regards to what impact a broadband installation may have on their building. It was suggested that the City of London standardised wayleave template includes terms which are more precise and descriptive that could be included in the regulations.

Some respondents also suggested that there should be a qualified individual independent of the operator to sign off on each installation. It was also raised however that each operator will have their own pre-existing quality assurance procedures and it would be inappropriate for these regulations to prescribe a particular procedure for signing off work. There were concerns that requiring a qualified individual to sign off installations would incur additional costs, and this may go against the principle of reducing operational burden. There were also concerns about whether this requirement would provide any assurance to landowners, and also how the regulations would dictate what would constitute a ‘qualified individual’.

A few suggestions were raised regarding whether the nominated individual to sign off installations should have specific qualifications. Respondents suggested that the nominated individual should be someone in a supervisory position and for operators to take the responsibility to designate the most appropriate individual. Another suggestion was for the government to make a standard requirement for a Quality Audit team with responsibility for undertaking quality checks on building installation. Further recommendations included requiring Chartered Surveyors to be nominated to sign off installations.

Government response

The government intends to require that operators should undertake installations on a ‘least possible damage’ principle. By placing this in regulation the intention is to ensure they pay additional consideration to how the installation is practically undertaken and take additional care in the manner in which works are carried out. We accept however that this element opens up the potential for disputes between operators and landowners. To avoid this, we will seek to ensure that terms set out in the regulations are as precise and descriptive as possible and kept under review.

The government also intends to require the operator to nominate the most senior individual carrying out the works to sign off each installation. The government understands that each operator will have pre-existing quality assurance procedures and does not look to replicate this procedure. We look to encourage that each operator carries out their duties and complete installations to an acceptable standard through their quality assurance procedures. The requirement to nominate a specific individual to sign off each installation recognises the unusual situation of work undertaken under a Part 4A order, in that work will be undertaken without explicit consent, or possibly even knowledge, of the landowner. The government will keep these processes under review, to ensure that these processes result in an acceptable quality of work.

We believe that the nominated individual who signs off installations should be the most senior individual in the group performing the work. Further, as it is the operator’s responsibility to ensure the works are to be completed to a high standard and they have successfully fulfilled the tenant’s request for a service, it should be for the operator to designate the most appropriate individual to sign off the work. The individual should be clearly named and, once confirming the standard of the installation, be considered the individual ultimately responsible for the quality of the build.

4.6 Restoration of the connected land at the end of the works, to the reasonable satisfaction of the landowner.

We asked:

Do you agree that operators should be required to restore the common land to its previous state or otherwise to the reasonable satisfaction of the landowner?

Do you agree that - due to the unique nature of installations and buildings - that we should not seek to closely prescribe how restorations should be undertaken but require that properties should be returned to as near original condition as practically possible?

Do you agree that operators should not be compelled to keep records of the installation, and that this should be strongly encouraged only?

Context

The government recognises that aside from installations being carried out in a safe and conscientious manner, it is also important that the common areas within the property are left in a good state. This is particularly important in multi-dwelling buildings where all residents are likely to use or have access to shared common areas - such as stairwells, hallways, lobbies or driveways.

Installations under a Part 4A order will normally require works to be carried out both inside and outside a property. Broadband deployments may require land adjacent to the property to be dug up, internal and external walls to be drilled and fibre lines run throughout the building. These activities have the potential to be unsightly, cause trip hazards, or otherwise have an impact on the aesthetic of the property. The policy intention is to ensure that the operator minimises and rectifies any damage that they caused as part of the installation process.

In the consultation, the government proposed that in the terms to accompany a Part 4A order, operators should be obliged to ensure that the property is restored to as near to its original condition as possible at the end of their works. As each building and each installation is likely to be unique, it is our intention to not specify what that condition should be in further detail.

We heard

A combination of telecoms operators, landowners and professional bodies agreed that operators should be required to restore the connected land to its previous state or otherwise to the reasonable satisfaction of the landowner. However, some suggestions were made that regulations should require connected land to be restored as near to its original condition as possible rather than to the reasonable satisfaction of the landowner, due to the potential to lead to disagreements. It was recommended that the government adopt more neutral wording in the regulations to avoid creating an unfair burden on operators.

Respondents agreed that the government should not seek to closely prescribe how restorations should be undertaken. Respondents suggested the requirement should be to restore the property to as near to its “previous state” as possible rather than its “original condition”, as per the wording in Question 15. It was recommended that operators should be expected to inform and disclose fully how the installations will take place, as well as how and where there may be damage, as this is required for buildings insurance purposes.

Respondents from the telecoms industry agreed that operators should be strongly encouraged to keep records of the installation to help resolve future disputes, and that this should be a minimum requirement. Some suggested however that operators should be compelled to keep records, seeing this as an appropriate requirement for the balance that the government is seeking to achieve, and to guard against abuse of the TILP framework.

Government response

After considering the responses to the consultation, the government remains of the view that - due to the unique nature of individual buildings and installations - regulations should not be too prescriptive in its requirements regarding restoration of land after works.

In particular, we recognise the concerns raised around the phrasing of “as near original condition”. The government believes it would not be prudent to closely prescribe how restorations should be undertaken, and so intends to avoid phrases such as ‘original condition’ in regulations.

After considering the responses, the regulations will not compel operators to keep records of the installation, but the government is of the clear view that keeping records will help resolve potential future disputes. The benefits of collection and retention of records will help assist the courts to swiftly deal with any complaints and protect operators from vexatious complaints regarding the installations. We believe that record keeping will be in the best interests of operators and likely to be an essential element of defence against any future challenge.

4.7 Insurance cover or indemnification of the landowner.

We asked:

Do you agree that we should require operators to have a specific level of insurance and that it should be placed within the accompanying regulations?

Do you agree that £5,000,000 should be the minimum level of insurance cover?

Context

In the consultation, the government proposed that to ensure clarity and equal compliance by all operators, those seeking to use a Part 4A order must possess sufficient public liability, indemnification and third party insurance to cover the installation and maintenance of their equipment. Similarly the government proposed in the consultation that the operator must ensure they have insurance or indemnification cover for any potential damage that may occur to the property (including individual dwellings), the lives of the residents or loss of income to the building owner. The consultation proposed that the minimum level of insurance cover that an operator should possess for any installation should be £5,000,000 (five million).

We heard

Respondents agreed that operators should be required to have a specific level of insurance and that it should be placed within the accompanying regulations, however it was recommended that the regulations do not include a specific monetary level of cover as this will be dependent on the property and become outdated over time.

A number of respondents expressed concerns over the amount of £5,000,000 as the minimum of insurance cover as some multi-dwelling units in high value areas may require a higher minimum level. Other concerns included the amount may be exceptionally high for a single building incident and it was suggested it should be set to £1,000,000. Other respondents suggested that the minimum level should be set to £10,000,000 as a standard. It was also suggested that the minimum level should be determined by property values at the time of proposed deployment.

Government response

The government intends to require in regulations that operators should have a specific level of insurance or indemnification of the landowner to use a Part 4A order and must possess sufficient public liability, indemnification and third party insurance to cover the installation and maintenance of their equipment.

We recognise that there is significant variation in insurance cover and the concerns raised by a number of respondents around the amount of £5,000,000 as the minimum level of insurance cover or indemnification of the landowner. However, upon reflection we consider £5,000,000 is proportionate and appropriate to ensure landowners are not unfairly disadvantaged or otherwise penalised by accidents or mistakes made by operators in exercising their Part 4A time-limited Code rights. We recognise that in some parts of the UK, £5 million may not be applicable, however this will be a minimum rather than maximum cover. With respect to public liability and third party insurance, we will ask operators to maintain appropriate levels of insurance cover. The level of insurance will be kept under review.

4.8 Maintenance or upgrading by the operator of apparatus installed on, under or over the connected land in the exercise of the Part 4A code rights.

We asked:

Do you agree that operators should be compelled to ensure that their equipment is suitably maintained - or upgraded - for the duration of the Part 4A order?

Do you agree that operators should have the right to re-enter the property (subject to having given notice to the landowner - as set out in 4.1 - and, if necessary, individuals or organisations with powers delegated to them by the landowner ) for the purpose of maintaining and upgrading installed digital infrastructure?

Should the maintenance obligation on the operator also cover additional works that are undertaken as part of the installation - such as reinstatements, wall plastering and equipment housings?

Context

To ensure that services continue to those in the building, and that the telecommunications equipment is maintained to ensure its safety, it is important that operators have the ability to inspect, repair and upgrade equipment.

A successful application under Part 4A will provide the operator with access rights to the property for a period of 18 months. The government recognises the potential safety issues associated with equipment which is not properly maintained, and this could be exacerbated by a landowner who may be absent and therefore unable to bring potential faults to the attention of operators. To address the potential safety concerns it is important that equipment installed via a Part 4A order is suitably monitored and maintained.

In the consultation, the government proposed that operators should - for the duration of the Part 4A order - have the right (subject to any other conditions in the regulation) to re-enter the property for the purpose of maintaining and upgrading the apparatus.

We heard

Eight responses collected from landowners, telecoms operators, local government, property management and professional bodies agreed that operators should be compelled to ensure that their equipment is suitably maintained - or upgraded - for the duration of the Part 4A order, in line with the latest legislation, regulations and industry standards. A professional body suggested that operators should not be obliged to upgrade the apparatus in the regulations to enhance the services provided, and that there should be an obligation only to ensure that their equipment is suitably maintained. The same respondents agreed that operators should have the right to re-enter the property for the purpose of maintaining and upgrading installed digital infrastructure.

One respondent - an operator - argued that they should not be required to submit notices, either to landowners or managing agents, when re-entering a property for the purposes of carrying out a normal service visit for residents. A requirement for notice to be given ahead of such work would mean a longer waiting period for an operator to address a fault or upgrade their services. By contrast, another respondent - a landowner - emphasised the importance of providing reasonable notice. Another operator noted that whilst such rights of re-entry for maintenance and upgrading, whilst important, would likely not need to be frequently used.

A property management company suggested that any instance of operators entering the building should occur only with the agreement of a court appointed surveyor or empowered agent (and, if appropriate, with the required grantor if they subsequently engage with the operator). Further, this respondent suggested that entry should only be permitted after full details of the works have been provided and approved.

Whilst most respondents agreed that the maintenance obligation on the operator should also cover additional works that are undertaken as part of the installation - such as reinstatements, wall plastering and equipment housings, it was highlighted that this could open up challenges for operators, and one telecoms operator suggested network architecture should fall within the general maintenance requirement and not to the operator to maintain parts of the building over which it would have no legal responsibility.

Government response

The government intends to include a requirement in regulations that operators must, as far as reasonably practicable, ensure the safety of the telecommunications equipment they install in a property as a result of a Part 4A order. We understand the concerns that the choice to upgrade a service is commercial and therefore we do not intend to place an obligation on an operator to upgrade the equipment to enhance the services provided as this will be requested by the customer in the building. However, the government does believe it is important that operators should have the ability to upgrade their equipment, should they choose to make that commercial decision.

The government intends to provide that, where the operator wishes to seek rights through Part 4A to re-enter a property for the purposes of maintenance, repair or upgrade of infrastructure, this will be subject to having given notice to the landowner or managing agent (as set out in 4.1 and 4.3), unless the works in question are in response to an emergency. We believe this is the right course of action to ensure operators can access the installed infrastructure for safety purposes or emergency repairs, whilst respecting the interests of landlords and their tenants.

We recognise concerns that placing an obligation on the operator to cover additional works such as reinstatement could open up challenges for the operator where it may be required to maintain parts of the building where the operator has no legal responsibility. Therefore, the government does not intend to require the operator to cover additional auxiliary works such as plastering or painting carried out during the installation process.

4.9 Imposing requirements or restrictions on the landowner for the purposes of preventing damage to the apparatus; Facilitating access to the apparatus for the operator, or otherwise preventing or minimising disruption to the operation of the apparatus.

We asked:

Do you agree that landowners should be prevented from interfering with the installed equipment or otherwise undertake actions which limit access to the property or the delivery of the service to residents, for the period of time that the Part 4A order remains valid?

Do you agree that requiring operators to label their equipment with details of the installation and contact details will reduce the risk of unintentional damage to the apparatus by a returning landowner?

What information should be placed on the labels placed on equipment to ensure that the landowner is given sufficient information about the circumstances of the installation?

Context

Installations undertaken as a result of a successful application to the courts for a Part 4A order will have been undertaken in the exercise of legal rights. As such it is right that those installations are protected from unnecessary or vexatious interference. In the consultation, the government proposed that for the duration of the period that the Part 4A orders are valid, landowners should be prevented from interfering with apparatus, restricting operators’ access to the property, or otherwise taking actions which would prevent the telecommunications services being delivered to households in the building. This would not restrict the landowner’s rights to raise a complaint with the operator or bring a case at the court to end or replace the Part 4A order or seek to enter into a negotiated agreement with the operator.

We heard

In order to protect consumers against potential disconnection or disruption to their service, telecoms operators, professional bodies and a local government partnership agreed that landowners should be prevented from interfering with the installed equipment, or otherwise undertake actions which limit access to the property or the delivery of the service to residents, for the period of time that the Part 4A order remains valid. However it was highlighted that if a landowner, with their greater understanding of the building, encounters equipment for the first time and finds it to be a hazard to the building or to residents, there should be a more efficient method for ensuring the equipment’s removal than applying to the court.

Respondents agreed that operators should be required to label their equipment with details of the installation and contact details to help reduce the risk of unintentional damage to the apparatus by a returning landowner. This approach will follow the City of London’s standardised wayleave agreement (Clause 4.7.1). It was suggested that this will also enable any required grantor, their managing agent, or other operators to identify ownership and responsibility for the equipment.

Suggestions were made by respondents as to what information should be placed on the labels placed on equipment to help ensure that the landowner is given sufficient information about the circumstances of the installation. Suggestions included the operator’s company name, telephone number, reference number, site reference, date of installation, inspection sign off and date, QR code and common wording that states the equipment is installed under a legal framework and is enforceable by the court and any removal or vandalism is punishable by the court.

Government response

The government intends to place in regulation that for the period that the Part 4A order remains valid, the equipment installed shall be protected such that the landowner is not permitted to interfere with the apparatus or otherwise prevent the delivery of the service. A landowner who is unhappy with any aspect of the installation may engage with the operator directly, or raise a case before the court to replace the agreement imposed through Part 4A.

We believe that, given the nature of the Part 4A order, it is entirely reasonable that a landowner may enter their property to discover equipment installed about which they have no knowledge. For this reason the government considers it essential that operators affix labels to their equipment that provide details of the installation and contact details so as to reduce the risk of unintentional damage to the apparatus by a landowner who is unaware of what it is or how it came to be installed. This will ensure the landowner, managing agent, other operators and residents can identify ownership and contact the operator to begin dialogue.

After considering the responses from a number of individuals, we intend to include in the regulations a specific list of appropriate information which should be placed on the labels of the equipment to ensure the landowner is provided sufficient information. Likely appropriate information to be covered in those regulations include:

• Operator company name
• Telephone number
• Reference number
• Date of installation
• Date of sign off, and name of individual responsible for sign off
• Common wording that states what equipment it is and that it is installed under a legal framework and is enforceable by the court and any removal or vandalism is punishable by the court.

We believe that this information is sufficient for landowners, managing agents, other operators and residents to identify the equipment, its purpose, its ownership and contact the operator to begin dialogue if desired. This information should be clear and should be considered a minimum. Operators should consider whether there is other information which may be pertinent to include.

4.10 The assignment of the agreement.

We asked:

Do you agree that Part 4A rights should be able to be transferred between operators?

Do you believe that there should be limits to these transfers, and if so, what limits would you suggest?

Context

There are a number of digital infrastructure providers and service operators in the UK, and it is possible that, in the future, there may be consolidation in the market. Consolidation may lead to a scenario where digital infrastructure installed in a property under a Part 4A is no longer owned by the operator who initially applied for the Part 4A order.

In the consultation, it was proposed that in a situation where the ownership of an operator changes, the rights and responsibilities of the Part 4A order are transferred to the new owner.

We heard

Respondents indicated that Part 4A rights should be transferable between operators as this is consistent with the other assignment provisions within the code. If rights are to be transferred to a new operator, respondents agreed there should be an obligation on that operator to inform all relevant landowners, managing agents and residents with that information and with new contact details. However, one respondent in asset management raised concerns about rights being transferable and highlighted that the right to assign freely by Code operators to third parties should be prohibited and any third party should apply for their own Code agreement.

Respondents strongly agreed that there should not be limits to these transfers and the rights and responsibilities should pass in their entirety to the new operator, providing that they have Electronic Communications Code powers. The transfer or assignment should be evidenced by formal documentation. A telecoms operator suggested allowing the rights to be transferable would ensure that residents are not prejudiced by a merger between telecoms operators.

Government response

Where the ownership of an operator changes, the rights and responsibilities of the Part 4A order should be able to be transferred to the new owner.

Accordingly, we intend that regulations should not place limits to these transfers and the rights and responsibilities should pass normally to the new operator providing they have Electronic Communications Code powers. We intend to require in regulations that assignment should be evidenced by formal documentation to ensure there is authentication.

4.11 Preventing an operator unnecessarily preventing or inhibiting the provision of an electronic communications service by any other operator.

We asked:

Do you agree that the regulations should not define what actions would ‘unnecessarily prevent or inhibit the provision of an electronic communications service by another provider’?

Are there any specific installation techniques or approaches - that ‘unnecessarily prevent or inhibit the provision of an electronic communications service by another provider’ that you believe should be included in the regulations?

Context

The government believes that it is important that leaseholders have the opportunity to access services from a range of providers so they may choose connections that best suit their needs.

The Act does not limit the number of simultaneous Part 4A orders that can exist on a property. If Operator A makes a successful application via the courts for a Part 4A order, this does not prevent Operator B making a similar application to the courts for Part 4A rights. Similarly, the Act does not prevent a leaseholder with an existing connection (of any sort) from requesting a new service from an alternate operator.

The consultation proposed that it should be specified in regulations that installations undertaken by an operator who has gained access to premises following a successful application for a Part 4A order should not unnecessarily prevent or inhibit the provision of an electronic communications service by any other operator.

As each installation and building is unique, the government suggested that it would not be possible or desirable to set out in regulation a definition of what would constitute an operator unnecessarily preventing or inhibiting the provision of an electronic communications service.

We heard

Respondents confirmed that every property is unique and therefore it would not be possible to define specific actions within the regulations. Some respondents were concerned as to how many competing services are required to provide sufficient choice to consumers and what Code rights might be granted without the landowner’s knowledge or consent. It was recommended that there should be limits to ensure that only one Part 4A Order may be granted in respect of a property at any one time.

Some respondents recommended that to minimise disturbance to landowners’ property, regulations should include a requirement that operators should make passive infrastructure (such as ducting) available to other licenced operators. It was suggested that if this option is considered, it should then be a requirement that the ducting installed be of a size sufficient to carry a minimum of 4 additional lines, to prevent a single operator from congesting the duct with multiple cables of their own, which would preclude sharing. Other respondents suggested operators should be prevented from installing ducts, conduits or cable trays for their exclusive use where there is capacity within them for other utility providers to make use of that spare capacity. One operator strongly opposed this suggestion and indicated that it is novel to place an obligation (albeit an informal obligation) on an operator to specifically refrain from inhibiting competitive supply in regards to physical installation.

Government response

After considering the responses to the consultation, the government recognises that every property is unique and therefore not possible to define specific actions within the regulations. However, the government does intend to make regulations requiring that installations or other work undertaken using Part 4A rights should not, unless necessary, inhibit or restrict the ability of operators to provide an electronic communications service.

On the question of shared use of passive infrastructure, the government welcomes the suggestions made by respondents, and encourages individual operators to carefully consider opportunities for such sharing. However, passive infrastructure - such as ducting - installed by an operator is the private property of that operator, and it is not for the government to make commercial decisions regarding that property. Whilst a requirement for passive infrastructure to be shared could create fair competition and minimise excessive cabling, it is not for the government to require a provider to open up their network to other providers, such decisions are the responsibility of Ofcom. Each duct and conduit is the private property of the dedicated provider and could create challenges should there be damage to that infrastructure.

Policy proposals: the process of making an application to the court and the duration of Code rights.

5.1 Conditions that the operator must satisfy before giving the landowner a final notice.

We asked:

Do you agree that operators should be required to undertake a land registry search to try to identify the landowner?

Do you agree that the operator should be required to engage with the resident regarding the identity of the landowner?

What would be the challenges of affixing notices to the front of the building, or in common areas within the property which seek to identify the name and address of the landowner?

Context

The government believes that Part 4A orders, allowing telecoms operators to enter private property without the express permission of the property owner, should only be used where all reasonable efforts to communicate with the landowner have failed.

To ensure that Part 4A is used in this way, it is important that operators can demonstrate that they have taken steps to identify the landowner and have been issuing notices to the correct person at the correct address, or have otherwise undertaken a reasonable level of investigation that has determined that the landowner is unidentifiable.

Existing legislation gives tenants in England and Wales a legal right to know, or request, the name and address of their landlord.^{[footnote 8]} The Part 4A process requires operators to receive a request from a leaseholder (lessee in occupation) for a broadband service. It should therefore be relatively simple, and reasonable, for the operator to engage with the resident who made that request to ask them for details of their landlord.

In this consultation, the government proposed that an operator must engage with the individuals making the service request to ascertain the identity and address of the landlord. We have proposed a number of routes which operators could follow to ensure they have made every effort to contact the landowner.

The Land Registry holds details of property interests in land and buildings in England and Wales.^{[footnote 9]} The Land Registers of Scotland is available in Scotland.^{[footnote 10]} The Land Registry of Northern Ireland collects information related to ownership in Northern Ireland.^{[footnote 11]} It would seem reasonable therefore to require operators to search the national Land Registry to ascertain the identity of the owner of a property. We understand that this process is not unfamiliar to operators and is carried out widely on a voluntary basis.

The government also considered that it may be appropriate for operators to affix notices to the outside either to the front door of the building or in another common area (hallway/lobby) providing notice of their intention to install and requesting information as to the owner of the property. This approach may also have an additional benefit to the operator of stirring interest in the services and allow multiple units within the property to be connected in the first installation.

The government recognises that many of the above approaches are already undertaken by operators on a voluntary basis, but believe that incorporating them as mandatory requirements will increase confidence in the process and assist in ensuring that Part 4A orders are only used in instances where there is a genuine need.

We heard

It was strongly agreed that regulations should include operators providing evidence that they have undertaken the steps to identify and contact the landowner. It was highlighted that operators use this as part of their standard process today. Recommendations were made that the regulations also include those who use bulk search tools, where they have paid the Land Registry to download UK property data in bulk and use these to carry out record searches. A recommendation was made that the regulations need to address parity between the responsibility of the operators and the landlords with the potential for penalties against landlords should they fail to engage with operators within a reasonable period.

Operators should be required to engage with the resident regarding the identity of the landowner and attempts of engagement should be recorded. It was recommended the operator should also be required to engage with any appointed managing agent, Right To Manage Company or resident management company or other empowered agent to obtain details of the landlord and their contact details in England or Wales. There were concerns that the regulations should not include an obligation on the resident to provide their landlord’s contact details if they do not possess them and so operators should use the Land Registry data.

Respondents also discussed the challenges that could occur if affixing a notice to a common area to identify the name and address of the landowner. Respondents highlighted that there may be additional restrictions where an operator may not be able to obtain entry to the common area. There were concerns that the notice could be damaged, vandalised, simply ignored or not in the appropriate language for residents. Respondents raised that an operator would need the legal right to affix a notice to the property and may need legal rights to access the property to affix the notice and so the court imposed agreement would need to be in place before the notice about the works can be affixed. There may also be some properties where there is no suitable location found to affix a notice.

Government response

The government intends to include in the regulations that operators will be required to have undertaken a land registry search to identify the landowner.

It is important that an operator try all reasonable means to identify and contact the landowner before making an application for a Part 4A order. We have taken the responses into consideration and agree that using bulk search tools is an appropriate method for those who have a subscription.

Regarding the suggestion that there be penalties for landowners who fail to respond within a given period, while we appreciate that a landowner’s failure to respond to a notice may be frustrating both to the operator and the leaseholders within their property, we do not believe it would be proportionate to penalise the landowner for their failure to respond to a notice sent by a commercial organisation. There are a number of entirely reasonable explanations as to why a landowner may be unable to respond to a notice, and while the government - through the Part 4A process - believes that these reasons should not prevent leaseholders from accessing broadband services, it would be unreasonable to punish landowners for failing to respond.

The government also intends to require in regulations that operators should engage with the resident regarding a landowner’s identity, though there will be no obligation on the resident to provide their landlord’s details when asked.

We have taken into consideration the challenges of affixing a notice to the front of the building or in common areas within the property which seek to identify the landowner. Challenges such as restricted access for the operator, notices that are not in the appropriate language and damaged, vandalised or ignored notices will be taken into account and kept under review.

5.2 Evidence requirements needed for a Part 4A application.

We asked:

Do you agree that operators should provide evidence that they have undertaken the steps to identify and contact the landowner (to be set out in regulation)?

Do you agree that copies of the notices, proof of postage and service request should also be included?

Could a signed declaration from the operator as part of the application process that the required steps have been completed be used as an alternative?

Are there any other forms of evidence that you believe operators should be required to produce?

Context

The Act allows operators - who fulfil the criteria otherwise set out in the Act - to make an application to the court for an order under Part 4A of the Code. This process is designed to be both faster and less costly to applicants than an application for full Code rights under Part 4.

However, to ensure that the rights of landowners continue to be protected, the government intends to require operators to undertake steps to identify and contact the landowner, to ensure that Part 4A orders are only granted in appropriate circumstances.

In this consultation the government proposed that the operator should provide evidence that:

• There is an individual in the property requesting a service;
• They have performed a search of the land registry;
• They have engaged with the individual in the property requesting a service regarding the identity and address of the landowner/landlord; and
• Copies of notices have been issued to the landowner with proof of postage.

We do not consider that production of this evidence would place an undue burden on the operator.

The government welcomed views on whether the operator should be required to provide copies (physical or digital) of documents as part of the application process, or whether a signed, legally-binding document confirming they have been undertaken would be more appropriate.

We heard

It was mostly agreed that operators should provide evidence that they have undertaken the steps to identify and contact the landowner. A broadband provider suggested however that operators should not have to submit this documentation for every case as it would be inefficient for the courts to check and verify documentation for every application. There were also concerns that this would be an administrative burden on the operator and that self-certification of whether the required steps have been followed should be a sufficiently robust way of providing evidence.

A respondent in asset management highlighted that a Part 4A application should only be allowed to proceed after written proof has been provided by the operator of its efforts to notify and communicate with the landowner, including proof of a request from the resident asking for this service, proof of a search of the landowner through the Land Registry, copies of all notices issued and served to the landowner or managing agent, copies of the plans for the installation and consents obtained by the operator, and a signed declaration from a director of the operator as part of the application process confirming that the required steps have been completed.

Four respondents agreed that copies of the notices, proof of postage and service request should also be included.

A number of respondents raised concerns that a signed declaration could cause abuse; the risk of which is disproportionately carried by landowners. These respondents highlighted that the evidential standard should remain at the highest level, and that the Court should be satisfied that all reasonable steps have been exhausted to establish the identity and contact details for the landlord and appropriate notices have been served correctly.

Other respondents were of the view that allowing multiple alternative forms of acceptable evidence would afford operators a useful level of flexibility and having tangible evidence would demonstrate the activity has been carried out.

Respondents’ suggestions of other forms of evidence that operators should be required to produce included:

• Proof that an operator has visited the property,
• Evidence of active attempts to find and communicate with landowners during the period of at least 60 days immediately prior to an application for a Part 4A Order
• Detailed plans of the works including health and safety documentation which must be reviewed and cleared by an independent qualified individual (e.g. a member of the Royal Institute of Chartered Surveyors) prior to works starting.

Government response

The government believes it is essential that both operators and landowners are assured that the evidence supplied in support of an application for a Part 4A order is robust. To ensure this, the government intends to require operators to retain evidence that they have undertaken the necessary steps to identify and contact the landowner. While we accept that this may create an administrative burden on operators, we are also of the opinion that this will likely be overcome by the establishment of clear and coherent processes within an organisation. We believe that this approach is proportionate given the nature of the Part 4A process and the likely absence of opposing views during the application. The government intends to require in regulations that an operator must retain:

• Copies of the notices that have been issued to the landowner,
• Evidence that these notices were given in the appropriate way,
• Copes of a request for a new service by a leaseholder within the target premises,
• Evidence of having undertaken a land registry search,
• Evidence of having enquired with the individual who requested the service to ask if they can share the name and contact details of the required grantor

Whilst the alternative of a signed declaration may provide flexibility for the operator, the government believes that the evidence of proof of notices, proof of postage and service requests given above would not be excessively burdensome for the operator, and would represent sufficient evidence to provide to the courts.

We shall keep these requirements under review.

5.3 Specify the length of time the operator has after issuing the final warning notice to make an application to the tribunal.

We asked:

Do you agree that operators should be required to make any Part 4A application within 42 days of issuing the final notice?

Is the addition of 28 days following the 14 day reply period sufficient time to allow the necessary preparations to be made to make an application?

Context

As drafted, the Act requires that the operator must leave a minimum of 14 days between issuing the final notice and making an application to the court. This minimum time is intended to provide a final opportunity for the landowner to receive and issue a response.

Once those 14 days have elapsed, it is reasonable to assume additional time will be required by the operator to make the application to the court.

In this consultation, the government considers 42 days from the issuing of the final notice to be an appropriate time frame. For the avoidance of doubt, the 42 days would break down into the 14 days that operators are required to give the landowner to respond to the final notice, plus an additional 28 days in which the operator must make an application. After this point, the operator will no longer have the right to apply to the court for a Part 4A order, and would have to restart the notice process.

We heard

It was mostly agreed by respondents that operators should be required to make any Part 4A application within 42 days of issuing the final notice.

A broadband provider suggested however that operators should be allowed to apply for an extension under circumstances where a 42 day limit is not practical. A telecoms operator disagreed that 42 days from the final notice is sufficient given that falling outside this window would mean an operator’s right to apply to the court would lapse and it would have to restart the entire service of notice process. Instead, it was suggested that 10 weeks (70 days) would be a more reasonable timeframe, in order to allow operators to engage external counsel and for the case to be robustly reviewed before taking it to the court.

The majority of respondents agreed that the addition of 28 days following the 14 day reply period is a sufficient time to allow necessary preparations to be made to make an application. One respondent agreed with the current drafting of the Act, which requires that a minimum of 14 days’ final notice to landowners to provide a response should be prescribed, and followed by a limited period during which the operator must bring an action within 28 days.

Government response

In addition to the requirement that operators will not be able to make a Part 4A application until 14 days after issuing the final notice, the government intends to include in the regulations a requirement to make any Part 4A application within 42 days of issuing the final notice. We believe this is the appropriate course of action, providing both adequate time for landowners to respond to the final notice, and sufficient time for operators to begin their internal processes.

As mentioned in the consultation, for the avoidance of doubt, the 42 days would break down into the 14 days that operators are required to give the landowner to respond to the final notice, plus an additional 28 days in which the operator must make a Part 4A application. We will keep under review the suggestion for operators to be allowed to apply for a reasonable extension in which a 42 day window is not available.

5.4 Specify the length of time (no longer than 18 months) after which the Part 4A rights will expire.

We asked:

Do you agree that the scope of the Act should be a specified period of 18 months?

Do you consider another period which should be replaced in the scope of the Act?

Context

The Act requires that Code rights obtained via a successful application for a Part 4A order will be valid for a period ‘no longer than 18 months’. 18 months is the average length of a retail telecoms contract and should therefore provide some confidence both to the operator and customer that their service will continue, uninterrupted, until their contract expires.

The government is also aware, from engagement with operators, that most landowners who are initially unresponsive make contact within 12 months (provided the operator continues to make efforts to make contact).

The government believes 18 months strikes a balance, short enough to ensure that operators do not lose momentum in their efforts to contact the landowner and enter into formal agreement, while providing assurances to the customer that their service will continue.

We heard

It was mostly agreed that code rights should apply for a specified period of 18 months. Some respondents noted that many operators provide their residential customers with 24 month contracts and longer contracts for commercial customers and that 18 months is actually not long enough to ensure contract continuity. A suggestion was made by a respondent that guidance should be produced for what happens at the expiration of that period. It was also suggested that the regulations should address what happens if the operator has not complied with the terms of the agreement, and that a Part 4A agreement should address termination rights in such an event as well as the relocation of apparatus as required by the grantor.

It was suggested by other respondents that the rights granted under a Part 4A Order should be for no more than 12 months and Part 4A Order should not be renewed or replaced if a landowner has been identified and has responded.

Government response

The government believes 18 months is an appropriate time frame to be set out in the regulations. While we recognise that some contracts can be longer (24 months) or shorter (12 months), we believe that 18 months provides sufficient time for operators to continue their efforts to engage with the landowner, negotiations to take place and a consensual agreement to be reached. In situations where operators have been unable to contact the landowner in that 18 month period, the operator will have rights to make an application to the court for full Code rights. The government has been consistent in its position that the fastest, most efficient means for telecoms operators to deploy their services is via a duly negotiated agreement with a landowner. The 18 month time scale is suitably long as to provide assurance to leaseholders while sufficiently short as to ensure the operators continue their efforts to contact landowners so as to avoid the potential of making an application via the court.

The government will consider providing guidance as to what should happen at the end of the 18 month period. Any equipment or installation within a property at the expiry of the Part 4A will no longer enjoy the protections provided by the Code. As such, an operator may seek to ensure the investment they have made in the property, and the customers within the property, are protected.

Policy proposals regarding the scope of the legislation

6.1 Types of property in scope

We asked:

Do you agree that the scope of the Act should be extended to include office blocks and business parks?

Do you consider that there may be other types of property which should be included in the scope of the Act?

Context

The Act currently addresses the issue of unresponsive landowners in the context of ‘multiple dwelling buildings’ (e.g. blocks of flats). A ‘multiple dwelling building’ is defined in the Act as a building which contains “two or more sets of premises which are used as, or intended to be used as, a separate dwelling”.

The Act, as drafted, only extends to multi-dwelling buildings, but contains powers for the Secretary of State to extend the scope of the provisions to cover other property types via regulation.

The government wants to support as many homes and businesses as possible to access new connections, so we consider that there may be a benefit in extending the scope of the Act to include office blocks and business parks. The intention of such an extension would be to allow leaseholders in commercial premises to request a service from an operator, and should the landowner repeatedly fail to respond to requests for access, an application could be made in the courts under Part 4A for time-limited Code rights.

Aside from office blocks and business parks, in this consultation the government was interested to receive evidence on other types of property which could also be included.

We heard

Multiple respondents suggested that the scope of the Act should be extended to include office blocks and business parks and they experience the same access issues. A respondent in asset management raised concerns and highlighted that the granting of time-limited rights should not be extended to all commercial property as in their view these rights are already entrenched and extensive within the Code rights for operators. Some respondents also highlighted that they do not believe that the scale of this issue is significant enough to warrant this change, and that there is not enough evidence that this is an issue for office blocks or business parks.

One respondent argued that the scope of the Act should be extended to include office blocks, on the grounds that there were concerns with the efficiency and time surrounding the Upper Tribunal, which is currently the only court through which operators may seek orders to access office blocks. The government was asked to provide clarity regarding the Upper Tribunal process, and the anticipated timescales operators should expect if they must pursue this route to access such properties.

Suggestions for other types of property to be included within the scope of the Act were third party land in rural areas, private or quasi-government land and networks such as railways, waterways, motorways, Transport for London, private infrastructure, and private mixed-use complexes. Respondents also suggested that further consideration should be given to where there is no declaration of interest from a tenant and/or leaseholder and to include third party land that exists between the public highway and the property occupied by the resident requesting service, all premises occupied by another other than the freeholder and any multiple occupancy building whether it is commercial or residential.

Government response

The government continues to be interested in providing in the regulations for the scope of the Act to be extended to include office blocks and business parks as we understand there are similar access issues with these types of property. Whilst we understand the concerns that there is not enough evidence that this could be an issue for these types of property, we believe that businesses should have access to fast, reliable connectivity, and as such, this change warrants continued consideration.

The government does not intend to set out a timescale for decisions. While we expect the Part 4A process to be quicker and cheaper than an application made to the court under Part 4, we are also aware that there will likely be a period of bedding-in, in order for the Part 4A process to reach its optimal efficacy. We anticipate that the bedding-in time will be relatively short, and once Part 4A has become established, the government may revisit the question of its scope.

We recognise the issues raised by respondents regarding other types of land. It was unclear however from the representations made whether the difficulties accessing these other types of properties were matters related to unresponsive landowners or general airing of difficulties being faced. We were also unclear how an operator would likely fulfil the requirement within the legislation to secure a lessee in occupation service request in order to access railways, motorways or waterways. We will keep the scope of Part 4A under review, and will be happy to accept future representations regarding the need to expand the scope to include other property types.

Annex

The following organisations responded to this consultation:

• British Property Federation
• Community Fibre
• Gigaclear
• Hyperoptic
• Internet Services Providers’ Association (ISPA UK)
• Openreach
• Royal Institution of Chartered Surveyors
• Superfast South Yorkshire
• Swish Fibre
• The Berkley Group
• Virgin Media/O2
• Westfield Europe Ltd

1. The Telecommunications Infrastructure (Leasehold Property) Act 2021 (“the Act”) gained Royal Assent in March 2021. ↩

2. In this document we are using the term landowner but for the avoidance of doubt this includes any individual with ability to grant Code rights - this includes (but is not restricted to) managing agents, leaseholders and landlords. ↩

3. Code ‘operators’ are those electronic communications network providers who have applied and confirmed by Office of Communications (Ofcom) as being designated as an operator under the electronic communications code. See the [full list of Code operators] (https://www.ofcom.org.uk/phones-telecoms-and-internet/information-for-industry/policy/electronic-comm-code/register-of-persons-with-powers-under-the-electronic-communications-code). ↩

4. All functions conferred by the Code (including Part 4A, once the Act takes effect) on a court in Northern Ireland (NI) are exercisable only by a county court. Unlike the rest of the UK, the jurisdiction for Code disputes has not been transferred from the county courts in Northern Ireland to date, due to the absence of a legislative assembly in NI when the 2017 reforms and subsequent regulations were introduced. This will be taken forward separately but until that point all Code-related court cases, including Part 4A applications, will be heard by a county court in NI. ↩

5. For the avoidance of doubt - An operator who has successfully applied for a Part 4A order will have time-limited rights to install electronic communications equipment in the property, and the landowners will not be able to prevent installations taking place without making an application to the courtl. ↩

6. https://www.cityoflondon.gov.uk/assets/Business/standardised-wayleave-agreement-216-KB.pdf (link accessed 16 June 2022) ↩

7. For the avoidance of doubt, the expectation is that operators will gain access to a property via the individual who originally made the service request. Operators will not be granted rights to force entry into a property. Operators do have the right, via Part 16, of the Electronic Communications Code to exercise their rights and apply to the courts if they are unduly impeded from doing so. ↩

8. Section 1 of the Landlord & Tenant Act 1985 ↩

9. Since 2003, anyone buying or selling land in England and Wales must register any new unregistered land or property, any new owner of registered land or property or any change in interest in the registered land (such as mortgages, leases or rights of way). ↩

10. https://www.ros.gov.uk/our-registers/land-register-of-scotland ↩

11. https://www.nidirect.gov.uk/articles/searching-land-registry ↩