Additional rights for telecoms operators in ‘unresponsive occupier’ scenarios

Since its introduction, the new 2017 Electronic Communications Code (the “Code”) has undergone various adaptations via the Telecommunications Infrastructure (Leasehold Property) Act 2021 (“TILPA”) and, more recently, the Product Security and Telecommunications Infrastructure Act 2022 (“PSTIA”).

This extra legislation has mainly focussed on ensuring the continuance of what the Government considers to be the right balance between public benefits in the context of the current digital age and the rights of individual landowners.

Birketts’ overview of the various changes introduced by PSTIA and how they impact the Code can be viewed here, but, in light of the recently released government consultation paper on the subject, this article focuses more specifically on the further provisions that are being rolled out to help Code Operators combat the difficulties that have previously been faced in scenarios where occupiers are unresponsive.

The current position

These difficulties were first addressed within TILPA, and the resultant provisions contained therein are already now in force as part of the Code. Broadly speaking, these are as follows:

• Where a service is requested by a tenant of a block of flats, but the landlord of the block fails to respond to an Operator’s request for access such that such service may be supplied, that Operator is permitted to obtain such Code rights over the other areas of the block that are necessary in order to supply the service in certain circumstances.
• The Operator must serve an initial request notice, followed by two warning notices and a final notice, following which they will be permitted to apply to the Tribunal for the rights they need. 
• The earliest that an Operator could make an application against an unresponsive occupier is 42 days following the date of the initial request notice, so although various rounds of notices are required, these may be served in quick succession and matters may become contentious quickly.
• The Operator has a maximum of 18 months from the date of service of the final notice to make an application to the Tribunal.
• Provided the unresponsive occupier still does not respond when an application to the Tribunal is made, the Tribunal may make an order conferring the rights on the Operator which it has asked for in the initial notice.
• The Code rights that are granted to the Operator in these circumstances may not be limited to what is needed to supply a service to the tenant of the flat who made the original request to the Operator but may be sufficient to allow provision of services to other residents too, provided the impact of this would not impose an additional burden on the unresponsive occupier.
• Where the Tribunal makes an order imposing an agreement between an Operator and an occupier in these circumstances, the occupier is permitted at any time to make an application to the Tribunal for compensation for any loss or damage that has been or will be sustained by the occupier as a result of the Operator exercising their rights.

The Impact of section 67 of PSTIA

This section is not yet in force, but effectively it expands upon what TILPA already started and will result in further supplemental provisions being worked into the Code under another new Part 4ZA.

In a nutshell, Part 4ZA reaches beyond Part 4A in the following ways:

• Where Part 4A only generally speaking applies to blocks of flats, it is proposed that Part 4ZA will apply to other “relevant land”, that being land which is not covered by buildings or used as a garden, park or other recreational area, provided that the Operator only needs rights under or over such land and not on the land.
• The 18 months referred to in Part 4A is proposed to be replaced with six years.

However, given the Government is currently pondering exactly what these extended provisions will look like via introduction of a consultation period which will inform the way that the supplementary regulations that will accompany this section will be drafted, the practical effect of the above is still not set in stone.

Main governmental considerations

The areas over which there are continued question-marks which are likely to be of most interest to landowners are as follows.

1. How limited should the terms of any Code rights granted via this special section be?

A variety of detailed points are being considered as part of this question, those being, amongst others:

• The extent of additional notices that Operators should be required to serve on landowners providing details of the works to be carried out in conjunction with the rights they will have been granted and when these works will take place, and how much effort the Operators should be required to make to bring those notices to the attention of landowners i.e. should they have to affix any notice to the “relevant land” as well as posting?  Should they be required to serve on any known agent of the landowner as well as the landowner themselves?
• Whether works should only be permitted to take place at certain times and whether these times should be fixed or negotiable in certain circumstances.
• The extent of the obligations that should be imposed on Operators in terms of how they carry out required works both during the works and afterwards (i.e. record-keeping).
• Whether equipment installed pursuant to a Part 4ZA right should have to be labelled as electronic communications apparatus, taking into account the fact that it will only ever be under or over the land, rather than on it.

2. Are these rights definitely only going to be able to be obtained over or under “relevant land”, or is this going to be expanded to cover other types of land also?

The Government is open to the idea of including other types of land within this definition as well – the key is that in order for other types to be considered, evidence would need to be provided of how including such areas would be a clear benefit to the delivery of a better telecommunications infrastructure as against a continued backdrop of needing to make sure that landowner rights are not being infringed too much.

3. How long will Part 4ZA rights remain in force?

There is scope for the suggested period of six years to be reduced, subject to comments received during the consultation process.  That said, six years is being considered to be a reasonable time period given the lesser impact on the landowner that is likely to result from the fact that the Operator is only allowed to install apparatus under or over the land in question, as opposed to on it.

In short, the Government’s outlook is that prior to the introduction of these additional provisions there has been a gap whereby it may still prove quite difficult for Operators to roll out electronic communications networks quickly and efficiently, which is having too much of a detrimental impact on the ability to introduce an adequate and effective digital infrastructure across the country.

It is important to note that the provisions covered within this article will only apply in scenarios where a landowner is genuinely unresponsive. That said, though, and whilst the Government has confirmed that it does not ‘take lightly’ the process of allowing Operators onto land without the permission of a landowner, it is key for landowners to act quickly if they receive access requests from Operators, especially in these specific scenarios if they want to avoid being thrown into litigation and being on the ‘back foot’ insofar as the extent of the Operator’s rights over their land is concerned.

Anyone is permitted to respond to the Government’s consultation in respect of Part 4ZA, the consultation period ending on 4 September 2022. Details of how to comment are contained within the consultation paper viewable via the Government website – The Electronic Communications Code: unresponsive occupiers – consultation (publishing.service.gov.uk).