Telecommunications Infrastructure (Leasehold Property) Bill | The key to unlock the door?

Background to the New Bill

Society’s demand for ever increasing broadband speeds and levels of connectivity apparently knows no bounds. Fortunately, the days of plugging a broadband cable into a phone port (consequently blocking out all calls) are now a distant memory, as is sending or receiving MMS messages over GPRS. In the past decade in particular we have seen average broadband speeds rise exponentially and 4G connectivity is quickly converting into 5G. 

In order to keep pace with the demands of both consumers and business, constant improvements to our digital infrastructure are required. The economic benefits are clear to see; a well-connected society does more business and on the whole it does it quicker.

According to recent research from O2 Business, UK firms could potentially benefit from £34.1 billion in gains from enhanced productivity with access to better connectivity.

Rather alarmingly, a 2019 Government consultation revealed that the UK was struggling to roll out the next-generation of broadband. One of the key reasons was that telecommunications equipment operators were facing significant difficulties in gaining access to blocks of apartments and other large buildings when landowners did not respond to their requests for access – apparently around 40% of the time. 

In the absence of any agreement granting rights, a network operator is unable to provide a connection to an individual flat or apartment within the building. This has led to connectivity black spots appearing across pockets of the UK.

Now that Parliament has finally turned its attention to matters other than Brexit, new legislation is being proposed on a variety of topics. Among those is the Telecommunications Infrastructure (Leasehold Property) Bill.  

The Bill was introduced to the House of Commons in January 2020 and is likely to become law at some point later this year. It will amend the existing electronic communications code which regulates the legal relationship between landowners and certain operators of telecommunication networks. 

What will the new Bill do? 

The Bill will attempt to reduce these barriers by allowing operators to apply for a court order establishing rights of access across “connected land” if a landowner does not respond to their requests for access. The term “connected land” here means land in the same ownership or which is used either in connection with equipment or is critical for access.

How would the new notice procedure work?

An operator will be permitted to apply to the court for an order granting access if it has followed a new notice procedure. Given that an order will grant formal access rights without the involvement of the landowner, it is safe to assume the courts will likely require operators to strictly follow the notice procedure and any mistimed notices will prove fatal to success. 

As the right for an operator to apply for a court order only applies when no response is received from a landowner, a landowner only needs to acknowledge receipt of a request notice in writing. Regardless of whether they accept or reject the request, once acknowledged, the notice procedure will stall and cannot proceed any further at that time. 

If a request notice is accepted then ultimately it is down to the parties to mutually agree terms. If that does not happen then the network operator will remain without access. As ever, a late objection to a request notice once court proceedings have already commenced will risk an adverse costs order. So landowners should be alert and carefully consider any request notice at the earliest opportunity.

In brief, the proposed new notice procedure is as follows:

Notice	When?	What?
Request  Notice	Whenever	Must contain specific details of what access is required and for what equipment.
First Warning Notice	After 7 days of the Request Notice being given	Must enclose copy of the Request Notice and confirm: it is the first of three notices that will allow the operator to apply for court order if no response received; and explain effect of a Court Order.
Second Warning Notice	After 7 days of the First Warning Notice being given	Must enclose copy of the Request Notice and confirm: it is the second of three notices that will allow the operator to apply for court order if no response received; and explain effect of a court order.
Final Warning Notice	Only within “Permitted Period”.  Commences: latest of 7 days from Final Warning Notice being given or 28 days from Request Notice being given. Ends: 28 days from Second Warning Notice being given.	Must enclose copy of the Request Notice and confirm: state that unless the landowner responds within 14 days the operator intends to apply for a court order; and explain effect of a court order.

What is the likely impact on landowners?

If a court order is made, then regulations may be imposed as to the exercising of the rights. These might deal with, for example, the level of insurance cover or the times permitted for access.

The rights will only last for up to eighteen months and so the Bill will not remove the need for a network operator to negotiate more permanent rights going forward. It’s also important to note that the existence of a court order would not prevent a landowner from making a claim for compensation, as the Bill does not propose to change these rules. 

Clearly the intention of the Bill is to only unlock the door to buildings where a network operator has been unable to create a dialogue with the landowner. It is therefore unlikely to have an impact on the majority of landowner and network operator relationships where the existing provisions of the electronic communications code will regulate the terms of engagement.

In a new decade where the laying of ultra-fast broadband will be so critical to infrastructure and the development of the digital economy, it remains to be seen whether the potential implementation of the Bill can be a small, yet useful tool to help network operators improve connectivity across the UK.