Government puts telecoms industry on hold again

Posted: 12/10/2021

COMMENT: In June 2021, the Department for Digital, Culture, Media and Sport issued a further consultation concerning the Electronic Communications Code. The “Consultation on regulations to implement the Telecommunications Infrastructure (Leasehold Property) Act” ran until 4 August 2021.

The 2021 Act inserted a new Part 4A to the Code and offers a means by which operators can gain interim rights to access to multi-dwelling premises. The rights only apply where the leaseholder requests that the service is provided, where the landlord’s permission is required for the connection and in circumstances where the landlord has not responded to the request for access.

Significantly, via the consultation the government has signalled that it is considering extending the scope of the Act to office blocks and business parks. Seemingly, the change is canvassed in circumstances where there is a lack of compelling evidence of a serious problem.

The consultation can, therefore, be seen as proof of the government’s continued commitment to the telecoms industry. While there will continue to be a small proportion of landowners who will not – or cannot, operationally speaking – deal with these sorts of requests, they are not the majority. To extend these powers to offices and business parks at this stage would affect a whole raft of landowners who would not necessarily have been affected when the Act itself was passed, and who would not have been heard as stakeholders in the legislative process.

The detail of the consultation

The first nine questions focus on notice and permissions after an order has been made. They suggest that notice should be given to the landowner and any agent by recorded delivery, that residents should also be notified by formal means, and that the notice be given not less than five working days prior to installation. The consultation envisages notices being attached to the building, eg on the doors. Question four asks whether placing the burden on the operator to obtain the necessary consents, permits, licences, etc is a sensible approach. The question is illustrative of the aforementioned approach of the government and the failure of DCMS to understand the position of landowners: it would be wholly unreasonable to require a landowner to seek permissions/licences required for works which would benefit the operator. While the landowner will have superior knowledge of the building (holding “as built” drawings, etc), the landowner will not be familiar with the ins and outs of installation, nor should it be expected to engage in the detail of what the operator requires. Placing the burden on the operator is therefore appropriate.

Questions 10 to 19 focus on appropriate levels of insurance cover held by operators together with works. It asks for responses on appropriate times for works, whether the operator should be under an obligation to do work on a “least possible damage” principle and how high standards of work might be safeguarded. Again, the fair position in relation to these would seem self-evident. The consultation asks for views on record keeping, specifically, whether operators should be “encouraged” to keep records around the detail of the installation. In order to future-proof these sorts of installations, proper record keeping would seem entirely necessary; how else will operators and landowners agree that redundant cabling can be removed when units change hands? Without proper documentation the possibility for riser cabinets to become overloaded is real.

Questions 20 to 29 also relate to matters which fall for consideration after an order is made, relating to maintenance and reinstatement obligations, access for maintenance, and whether there should be a duty to update landowners where rights are transferred between operators. Question 23 asks whether landowners should be “prevented” from interfering with installations for so long as the order remains valid.

The consultation outlines that such a measure would be intended to deal with “unresponsive” landowners who enter property, with no knowledge of the order, and remove the installation. While the paper does not outline how interference would be prevented, presumably a penal sanction is envisaged. In the circumstances, however, a sanction would appear unhelpful. Rather, it would be sensible to put in place further safeguards to ensure that landowners are not classed as “unresponsive” when in fact they are simply unaware.

Questions 30 to 40 relate to the process of making an application. Queries include whether an operator should engage with residents to ascertain the identity of the landowner, whether they should be obliged to search the Land Registry to do so, whether they should be obliged to produce proof of their efforts to the Upper Tribunal (Lands Chamber), and if so, the form of the same (with a signed declaration proposed). Again, it is hard to see requirements in those terms as onerous for operators. The paper also sets out that is it probable that an application for an order will need to be made within 42 days of the final notice.

Hoping for common sense

As previously indicated, where landowners do not respond to requests for access, more often this is as a result of inexperience around the workings of the Code rather than conscious decisions to ignore requests. One would hope that the result of this consultation would be to introduce sensible measures to ensure that these new powers are not abused. The steps contemplated, however, can only be described as basic. Landowners will watch and wait for the outcome of the next change to the ECC with the usual trepidation.

This article was published in Estates Gazette in October 2021.

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