Government rings the changes on mobiles
The government is finally tackling reform of the Electronic Communications Code (ECC), having failed to push through a revised Code as part of the Infrastructures Bill ahead of the General Election in 2015 following widespread concern that changes were being rushed through with insufficient consultation. The Code covers equipment used to transmit electronic communications, including mobile phone signals. This move coincides with the announcement of the Digital Economy Bill in the Queen’s Speech which, if enacted, will bring sweeping changes to the mobile telecoms industry backed by the new ECC. Mobile operators answered criticism of continuing poor coverage in some areas by arguing that the current Code, which gives them rights to put equipment onto land including rooftops, works too slowly.
The Government wants operators to invest heavily to improve mobile coverage in the UK and with that in mind George Osborne announced plans to roll out 5G during 2017 in his March Budget while permitted development rights (PDRs) regarding mobile phone masts are also being relaxed (Longer View, April 2016). But in return, operators want Government to help them reduce costs and the DEC will help them do so.
Many property owners complain about the restrictions they suffer under the current Code when an operator wants to put equipment onto their land or building while developers claim it is not uncommon for it to take around 18-24 months to remove electronic communications apparatus from a site due to the complexity of the legislation.
The current ECC was introduced during the privatisation of British Telecom in 1984 and the Government has stated that legislative changes will be taken forward "at the earliest possible opportunity". Since the previous Government tried to rush legislation in early 2015, both operators and property owners have sought to achieve the delicate balance necessary to meet their interests. The new Code will not have retrospective effect and will not affect agreements already in place, although it will apply to new agreements that replace them. Parties will not be permitted to "contract out" of the new Code or exclude any of its provisions. The focus of the ECC will be enabling access to land in order to install communications infrastructure, not enabling access to the infrastructure itself, already covered under the Communications Act 2003.
It’s thought that the Government will change the current test for deciding whether to override a property owner's rights if there is no voluntarily agreement to the installation of apparatus. This will probably involve assessing if the property owner can be compensated for loss from Code rights being imposed and whether the loss is outweighed by the public benefit in having access to the relevant services (including a choice of services). The scheme for valuing land will be similar to that for utilities companies, reducing rental expenditure for operators and incentivising them to upgrade sites and install new ones. Although the Government accepts that property owners should receive "fair payment" for the use of their land (in addition to compensation for any damage/loss of value), there will be an automatic right for operators to share and upgrade apparatus without prior agreement or payment where adverse visual impact is minimal. This will allow operators to update their networks quickly when new technology becomes available and to make efficient use of infrastructure through sharing.
There have been widespread concerns about ECC disputes being resolved in the county courts and the new ECC will shift dispute resolution to the Lands Chamber of the Upper Tribunal for most issues. The Government also intends to provide measures to allow early access to sites for operators where the only dispute relates to price.
Phillip NicholsonMRICS, FAAV
Phillip is a Partner based in Marlborough and heads up the firm's specialist Country House Solutions Team. His areas of expertise are rural estate management, the valuation and surveying of country ho...