Site Providers and the Code: What You Need to Know

The Electronic Communications Code (the ECC, or the Code) gives telecoms operators powers to install and use apparatus on UK land. It aims to increase and improve connectivity across the country. 

As a landowner or developer, you should understand operators’ powers. These differ from more familiar property rights such as leases and wayleaves outside of the Code.  If you own or occupy land or buildings, you may become a site provider under the ECC. 

Overview of the Electronic Communications Code

The Code grants telecoms operators wide‑ranging powers to support network rollout, including rights to access land, install apparatus, carry out surveys, and upgrade equipment.

When an operator approaches you as a site provider to enter into a Code agreement, they usually provide a draft standard-form agreement. They may have previously approached you to negotiate heads of terms, and they may request access to the property for a survey to assess its suitability for their equipment. This is known as an MSV, or Multi-Skilled Visit.

If no voluntary deal can be reached, the operator may apply to the Tribunal (the specialist court responsible for the ECC) for Code rights to be imposed. 

The Tribunal will generally impose the rights, unless you can show that the prejudice (i.e., loss or damage) to you as site provider outweighs the public benefit of the installation and such prejudice cannot be compensated financially. This is known as the paragraph 21 test. An imminent development of the site may also help to resist Code rights, but a lot of evidence is likely to be needed.

This can feel onerous to site providers. Site payments tend to be much lower than previous commercial rents, to keep costs down for network rollout.

Common Misconceptions

Misconception 1: Can’t I just say no?

Operators usually aim not to depart from their standard terms. Negotiation is possible, but certain rights are dictated by the law.

Where parties cannot agree, the Tribunal may impose Code rights on terms it determines. Operators may also seek interim rights pre-agreement.  An interim agreement will only take effect for its intended fixed term if imposed by the Tribunal. Otherwise, the Code rights will not automatically expire at the end of that term and will instead continue until ended using the statutory termination procedure.

In practice, if you fail to engage with the operator, this will often result in greater cost and less favourable terms in any agreement.

Misconception 2: Won’t they take over my land?

Site providers often fear a loss of control of their land under the ECC. However, by negotiating the terms of an agreement, you can retain control over the operators’ use of your property and manage access rights. We often recommend including a lift & shift clause, which enables you to request that the operator relocates its equipment within your site in certain circumstances.

Misconception 3: My tenant can’t sign, can they?

Yes, your tenant can sign. The occupier of the property should grant Code rights, meaning that, if you are approached as the ultimate landowner, you may not be the appropriate party to enter into the Code agreement if you have tenants or other occupiers on your property.

This should be managed alongside any tenancy obligations, and you should bear in mind that your tenants may be approached directly.

Misconception 4: But it’s an old lease…

Agreements predating December 2017 (when the ECC came into force) may now fall under the new regime.  It is important to check these, especially if you seek to terminate them. Timescales for termination can extend up to two years and should be factored into any development programme.

Key Rights and Impact

Key Operator Rights:

• Installation of equipment and related works
• Inspection, maintenance and related works (including upgrades)
• Access (site providers must not obstruct this)
• Interfere with access to your property for network purposes (this must be expressly conferred in the agreement)
• Connection to power
• Removal of vegetation
• Sharing with another operator the use of the apparatus and the rights
• Surveys in connection with the works or installation (commonly via interim rights under an MSV agreement)

Site Provider Impact:

• Termination of Code rights on the statutory grounds requires not less than 18 months’ notice.  We will cover termination later in this series
• Removal of the apparatus can take a further 6 months and may require a further Tribunal application
• Site providers can object to certain larger apparatus, but objection rights are narrow and time-limited, and restrictions apply
• Site payments are made up of consideration (the rent-like payment) and compensation (for foreseen damage and loss).  Future compensation clauses can provide for unforeseen future loss or damage
• A site provider can serve notice on the operator requiring them to disclose whether they have equipment on the land; if that equipment is used for the operator’s network; and if Code rights apply to that equipment

If You’re Approached

Our specialist ECC team has extensive experience negotiating Code agreements. If you receive an approach from an operator requesting a new Code agreement, or aiming to renew an existing lease relating to telecoms equipment, we can advise on the terms and on any possibility of resisting or terminating such agreements.

If you receive any notice under the Code, you should seek legal advice as soon as possible. Notices are time-sensitive and, if no response is received, may lead to full Tribunal proceedings.

Please reach out to Caroline Hickey, Rob Bailey, or Perry Swanson for further information or advice.

Next Time…

Look out for our next article: Valuation: Rent vs Consideration in Telecoms Agreements