A consultation response was submitted to the DCMS at the end of April regarding the reforming of the Electronic Communications Code. The current code, which came in under the Telecommunications Act 1984, applies to the whole of the UK.
Members with specialist and working knowledge of the Code attended the workshops held in London and Edinburgh before constructing the response. We have supported many of the Law Commission’s recommendations.
We feel the present Code is heavily drafted in favour of the operators and there are a number of defects in the existing Code provisions which potentially infringe landowners’ property rights. We hope the revised Code will address this.
Key contentious issues were:
• The proposed right for operators to assign, upgrade and site-share without additional payment to the landowner runs contrary to the existing established market and is not agreeable. This proposal would also act retrospectively on existing agreements most of which restrict assignment to group companies. We feel it is important for landlords to know who their tenants are particularly in rural areas where access issues may be more sensitive.
• Suggestion that when valuing the level of payment for code rights, the valuer should ignore the right to assign, upgrade or site-share. This is artificial and is contrary to commercial reality. The effect of this is that valuers will be asked to assess the consideration payable for a site on terms which cannot exist in practice because they are not permitted under the Code. The further a valuation assumption differs from reality the greater the valuation uncertainty.
• The issue of electronic communication equipment being on land currently not following normal property law. If the definition of land excludes electronic communication equipment Code rights cannot be applied to masts etc. and a significant proportion of the market will be excluded from the Code rights.
• The lack of definition of sharing could be used to the operators’ advantage and a definition should be established.