The Electronic Communications Code and what local authorities need to know

Emma Barnfield and Jeni Hanstock set out some of the issues that local authorities need to be aware of when it comes to the Electronic Communications Code.

Local authorities (LAs) are in a unique position to help deliver the government’s 5G connectivity targets and to reassure the public as to the misinformation around 5G, in particular health and safety concerns regarding electro-magnetic radiation emitted from 5G masts.

However, as well as delivering the local planning function, LAs are also extensive landowners in their own right and need to balance competing interests, including the Department for Levelling Up, Housing and Communities (DLUHC) 27 August 2020 guidance, with obligations to achieve “best value” when entering into land agreements and the provisions of the National Planning Policy Framework.

Code issues for LAs to consider

There has been a raft of recent cases under the Code resulting in issues that LAs should consider:

Access to LA sites for MSVs

Since the DLUHC guidance calling on LAs to help boost gigabit broadband rollout and 5G mobile coverage to assist in the UK's coronavirus recovery, we have seen a substantial increase in operator requests seeking access to survey LA sites (so called multi-skilled visits, or MSVs).

LA buildings in urban areas may be attractive if they meet an operator‘s height criteria. CTIL v University of London established that rooftop access surveys constitute a Code right. Often, any prejudice to the landowner is considered capable of being compensated in money. In EE Ltd and another v London Underground Ltd, the landowner's security concerns, and the building being designated as critical national infrastructure was not enough to convince the Tribunal that the operator's Code access rights should be cast aside, so it is difficult to see what reasons could be given to prevent access for MSVs.

The best course is likely to be early engagement with operators, and advice from a telecoms surveyor, to ensure that an LA's landowner position is protected. If terms cannot be agreed, the operator may apply to the Tribunal for rights to carry out an MSV and, given the recent case law, will likely succeed.

Negotiating Code agreements

The Code has broadly increased operator rights and, as it sets out the terms a court would impose, operators seek to include them by agreement. From a landowner's perspective, the key consideration in negotiating a Code agreement is asset protection, which subject to the particular attributes of the site may include:

• Safeguarding the interests of residents whilst the operator accesses the building to install and thereafter inspect, maintain and repair their apparatus. This may include supervised access rights, a pre-approved list of operator personnel able to access the building, an operator obligation to cause the least possible inconvenience when undertaking works (for example, agreeing set down areas for equipment and the positioning of cranes etc.) and an indemnity covering damage the operator may cause during visits and works.
•  A requirement for the operator to give reasonable prior notice before visits to the building and/or works may take place, to enable the landowner to communicate with affected parties in the building and to minimise the risk of any undue interference or disruption to the day-to-day running of the building.
• Securing a costs recovery provision for the landowner's benefit, to include taking professional advice, instructing a telecoms surveyor and negotiating and entering into a Code agreement.
• Considering the ICNIRP public exposure guidelines with the operator and seeking input from a telecoms surveyor on the technical aspect of any health risk posed to the landowner or its asset by the operator's proposed apparatus. This is particularly relevant to LAs, in light of the MHCLG guidance to quell concerns over the risk posed by 5G technology, if installation is to take place in proximity to residential buildings.
• Making provision for any maintenance programmes or redevelopment works planned by the landowner, and who bears the costs of switching off the apparatus, or if necessary, relocating the apparatus to enable plans to be realised.

It is highly unlikely that a landowner's interests will be aligned with that of an operator. Each request for a Code agreement, and the appropriate terms to sufficiently safeguard a landowner's asset, must be considered on a case-by-case basis and where there is a high level of prejudice to a landowner for which money is inadequate compensation, a landowner might justifiably refuse a Code agreement without inclusion of a particular asset-protecting measure.

Compensation and rent payable to LAs

Under the Code, the basis for calculating payments to be made to the landowner by an operator disregards the operator‘s use of the site for its apparatus and any uniqueness the site has to that operator.

There have been a number of decisions which give an indication of the approach the Tribunal may take, if asked, to the valuation of a particular type of site. In CTIL v London and Quadrant Housing Trust, the Tribunal held that an annual rent of £5,000 is a good indication of the market value of a Code agreement for a rooftop site on a residential building, and whilst there may be features of a particular building to justify a modest range, the Tribunal would not expect significant variations one way or the other. In On Tower UK Ltd v JH and FW Green Ltd, the Tribunal considered a rural greenfield site and determined that absent of particular special attributes an annual rent of £750 would be appropriate. Whether these decisions are creating a valuation benchmark under the Code remains to be seen.  

Emma Barnfield is a partner and Jeni Hancock is an Associate at Trowers & Hamlins.