The long-awaited new Electronic Communications Code came into force during the final days of last year, on 28 December 2017.
The Code governs the relationship between landowners/occupiers on the one hand and most mainstream electronic communications network and infrastructure providers (“operators”) on the other.
Here is a snapshot of some key changes that may have a commercial impact:
- Sums payable under a Code agreement: a Code agreement can be consensual or imposed by the court. If the latter, the sums payable to the landowner, such as rent, must now be calculated by reference to market value less any additional value deriving from electronic communications use – known as a "no scheme" value. This will usually result in a lower figure than that achieved under the old code and may have a knock-on effect on pricing under consensual Code agreements.
- Assignment: Operators can freely assign Code agreements to another operator without consent and without additional payment, whatever the Code agreement says. The only permitted condition to assignment is that an outgoing operator guarantees the performance of the immediate assignee.
- Sharing and upgrading: Operators can upgrade apparatus and share it with another operator without consent provided that this results in minimal adverse visual impact and does not impose any additional burden on the other party to the agreement. Any attempt to exclude these rights or make them subject to conditions, such as the payment of money, is void.
- As before, Code agreements automatically continue after the contractual end date but landowners have a new right to terminate the statutory continuation if they intend to redevelop the site.
As to the extent of the impact of the new Code in practice, we can but wait and see ...
For further information please contact Sian Skerratt-Williams or your usual contact at Norton Rose Fulbright.
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