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Current Position
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Modification
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Consequences
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Harmonisation of renewal processes under the Code and the Landlord and Tenant Act 1954
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- There are different procedures for renewing agreements governed by the Code and subsisting agreements protected by the Landlord and Tenant Act 1954 (the '1954 Act').
- Where a subsisting agreement is protected by the 1954 Act, it must be renewed under the 1954 Act.
- There are differences between the 1954 Act renewal process and the Code renewal process (including which assumptions apply and the venue for the renewal).
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- The differences between the Code and 1954 Act renewal processes will be substantially removed.
- The 1954 Act will be amended to adopt the Code valuation assumptions for telecoms leases.
- The Tribunal rather than County Court is to hear renewals of subsisting agreements under the 1954 Act.
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- Simplifies what is an unnecessarily complicated position.
- Some circumstances where the modification to the 1954 Act assumptions will reduce the rent on 1954 Act renewal leases.
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Clarification of Sharing Rights
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- The right to share is not a standalone Code Right.
- Operators have an automatic right to share apparatus, which can be subject to only limited restrictions.
- There is uncertainty as to the extent to which the Tribunal could impose wider rights to share apparatus.
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- Introduction of additional standalone Code Rights to share apparatus and to access land in connection with sharing.
- The statutory purpose behind the Code is to be amended to include operators enabling the provision of other operator’s networks.
- An operator under a Code Agreement can permit a sharer to exercise rights under that Code Agreement.
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- Helpful to operators, particularly Passive Infrastructure Sharers, whose business model relies on a wide-ranging ability to share apparatus.
- Concerning for site providers faced with operators being granted unlimited rights to share or upgrade apparatus located on their land.
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Grant of Code Rights over operator occupied site
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- Code Agreements cannot be imposed on a landowner who is not in occupation of the relevant site, including where the site is occupied by an operator.
- This position poses significant issues for some operators, particularly those holding over under a tenancy at will.
- There is considerable litigation on this point including pending appeal to the Supreme Court.
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- Where a site is occupied by an operator, code rights will be able to be imposed on a non-occupier exercising powers of management or control over that land.
- In the absence of such a person, code rights will be able to be imposed on a person whose interest in the land would be prejudicially affected by the exercise of those rights.
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- Will clarify a problematic aspect of the Code.
- Deprives site providers in certain circumstances of leverage they were able to exercise under the Code (as previously interpreted by the Tribunal and Court).
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Unresponsive Land Owners
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- No separate process under the Code to impose agreements on unresponsive land owners.
- Process introduced in 2021 to impose agreements on non-responsive owners of buildings in multiple residential occupation not yet in force.
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- Rights will be able to be imposed on an unresponsive land owner if a prescribed notice process is followed.
- Only applies to the installation of apparatus over or under (but not on) bare land.
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- Will assist operators with installing lines over or under land in rural areas.
- Site providers and/or managers of bare land should be on the alert for notices from operators.
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Sharing/Upgrading Rights of pre-Code underground apparatus
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- The automatic right to share and upgrade apparatus does not apply to agreements pre-dating the Code.
- The controls on sharing and upgrading which are in place in subsisting agreements can still be enforced by site providers.
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- Proposed introduction of limited automatic rights to upgrade and share apparatus to apply retrospectively to subsisting agreements.
- Limited to underground apparatus.
- Limited to where no adverse impact on the land and will impose no burden on the other party to the agreement.
- Specific notice procedure to follow.
- Similar process for upgrading and sharing apparatus where there is no agreement but the apparatus was installed before 29 December 2003.
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- Should assist fixed line operators in entering into sharing rights under pre-existing apparatus.
- Owners and managers of land subject to pre-Code agreements concerning underground apparatus should be on the alert for such notices.
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Changes to Pending Code Agreements
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- During application to renew or modify an expired Code Agreement, the Tribunal can determine the consideration payable pending the determination of the application.
- No modification of other terms pending the outcome of the proceedings.
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- The Tribunal will be able to modify other terms of the agreement pending the outcome of the proceedings.
- When doing so the Tribunal must have regard to all the circumstances of the case.
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- Will allow operators to seek to impose their current standard terms on site providers pending the determination of proceedings.
- Site providers resisting modified terms proposed by operators should be aware that they may be subject to these terms pending the outcome of proceedings.
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Alternative Dispute Resolution (ADR)
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- There are no specific provisions within the Code to encourage the use of Alternative Dispute Resolution (ADR).
- The Tribunal has shown its willingness to impose costs sanctions on parties which it perceived to have behaved unreasonably in proceedings.
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- Introduction of various measures to encourage the use of ADR, with the onus being on the operator.
- Operators will be required to consider the use of ADR before applying to the Tribunal.
- Notices served by operators must note the availability of ADR and explain the consequences of refusing to engage in ADR.
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- Reminder of the importance of ADR in disputes.
- Operators need to update their standard form notices.
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Code of Practice
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- OFCOM is under a statutory duty to provide a Code of Practice.
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- The Code of Practice will address the handling by operators of complaints.
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- Operators should be aware that there will be further guidance on handling complaints.
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