The Telecoms Code: dealing with unresponsive occupiers

The Queen’s Speech last month brought into focus the issue of legislative change across a range of issues, including telecoms. In this parliamentary session, the Product Security and Telecommunications Infrastructure Bill (introduced November 2021) has continued its passage, moving to the Lords (26 May 2022). At time of writing, second reading was scheduled for 6 June 2022. The Bill contains further measures to deal with “unresponsive occupiers” at clause 66, although it should be noted that the meaning of the same will exclude lessees (as to which, see below). The process, which is similar to that inserted into the Electronic Communications Code by the Telecommunications Infrastructure (Leasehold Property) Act 2021, is as set out below. Conditions An operator can only use the scheme, which will be set out in new paragraphs 27ZA-27ZH of the Code, if certain conditions are met. Namely, where the operator intends to provide an electronic communications service to the premises and, in order to do so, needs to install apparatus under or over (but not on) the land and cannot do so without having rights conferred over the “relevant land” or the occupier agreeing to be bound by the rights (27AZ (a)-(c)).  Scope The opportunity to use the process does not arise where the relevant premises are premises within the scope of Part 4A of the Code, occupied under a lease, or where the relevant land is “connected land” within the meaning of paragraph 27B(3), namely, land which is in common ownership (where the same person holds some sort of interest in the two parcels of land, although, not necessarily the same type of interest) with leasehold land. In respect of leasehold land and land in common ownership, the scheme set out in paragraphs 27A-27I, as inserted by the 2021 Act, applies. “Relevant land” is defined in 27ZB(3)(a) as meaning land which is any land other than land covered by buildings or used as a garden, park or other recreational area. However, sub-paragraph (3)(b) provides for the making of regulations by the secretary of state to modify the definition of “relevant land”, expanding it so as to include specified types of land that is covered by buildings or used as a garden, park or other recreational area.  It is understood that it is intended to widen the definition of relevant land via regulations so that it includes office blocks and business parks, however this is not yet certain, and whether the government will take this step remains to be seen. Sub-paragraph (4) provides that, before making regulations modifying the definition of relevant land, the secretary of state must consult various parties, including operators, persons appearing to the secretary of state to represent owners of interests in land who are likely to be affected by the regulations, and any other person the secretary of state thinks appropriate. While the government has previously consulted on these issues (in the context of the consultation on regulations to implement the 2021 Act) by asking whether other types of property should be included in the scope of the Act, as noted, this was in the context of the statutory scheme applicable to leasehold properties.  Notices  After a “request Notice” under 27ZB(1)(d), an operator will need to follow up with two “warning notices” (27ZC(1)(a)) and then a “final notice” (27ZC(1)(b)). A valid warning notice will be one which states that it is the first or second such notice and that unless the recipient responds the operator will apply for an order. There must be a 14-day gap between the request notice and the first warning notice, and each of the warning notices. A final notice must also be given not earlier than 14 days, but not later than 28 days, after the second warning notice (27ZC(6) and (7)). Any response, including a refusal, a holding response, or even an acknowledgment of receipt of any of the notices, will preclude the making of an application by the operator using this process (see 27ZD(5)), requiring them to either negotiate something or apply for an order in the usual way using paragraph 20. So the scheme really is limited to occupiers who do not engage in any way. Evidence will be required. If granted, a part 4ZA order will impose an agreement between a landowner and an operator, conferring the rights requested in the initial notice. Importantly, the provisions impose a six-year maximum time limit on the period for which rights conferred under a part 4ZA order may last (27ZF(1)(c) and (3)). 27ZE(5) sets out the terms of the agreement which must be set out in regulations made by the secretary of state. These include: restricting the operator’s right to enter land to agreed times except in cases of emergency; imposing requirements on an operator’s insurance cover and indemnification of the landowner; imposing requirements to restore the land when any works are completed; and prohibiting the installation of apparatus on land when the intent is to later install apparatus over or under it. The industry position seems to be that the scheme will allow the enhanced roll-out of high-speed connections at lower cost, and address issues arising with landowners based abroad, for example (see the evidence given in committee stage on behalf of the Internet Services Providers’ Association on 15 March 2022). Whether it will be used extensively, however, will remain to be seen. Laura West is a senior associate (barrister) in the real estate litigation team at Penningtons Manches Cooper Image © Maureen McLean/Shutterstock