The government's announcement on 13 January 2015 of amendments to the Infrastructure Bill to reform the Electronic Communications Code (the Code) was welcomed by many, the Code having been famously described by Mr Justice Lewison (as he then was) as "one of the least coherent and thought-through pieces of legislation on the statute book". 

However, this was swiftly followed by a further announcement on 23 January 2015 that the proposed amendments were being withdrawn. 

The Code, which governs the relationship between landowners and operators, grants operators extremely wide ranging powers to install and maintain electronic communications equipment within premises. 

In addition, it confers security of tenure on such equipment and the related networks. 

WHY IS REFORM OF THE CODE SO DESIRED? 

  • A key problem is the interaction between the Code and the Landlord and Tenant Act 1954 (the 1954 Act), in the situation where a landowner wishes to recover possession of the premises; an operator could assert security of tenure pursuant to the Code, despite having no equivalent rights under the 1954 Act
  • A landowner would then need to serve notice of its intention to recover possession on the operator and, if a counter-notice is served, it would need to apply to court for an order to remove the protected equipment
  • Whilst landowners try to circumvent this by including provisions in wayleave agreements that operators may not serve counter-notices, such provisions run foul of section 27 of the Code and would not be upheld by a court
  • Additionally, the major amendments proposed by the government included the introduction of a clearer procedure to be followed by a landowner exercising its right to require the removal of electronic communications apparatus from their land, and an amendment to section 23 of the 1954 Act to exclude tenancies with the primary purpose of Code rights from the benefit of the Act's security of tenure provisions. 

In light of the widespread dissatisfaction with the Code, there is disappointment that reform will not be forthcoming. 

However, there had been serious concern about the government's late introduction of the amendments to the Infrastructure Bill; a February 2013 report by the Law Commission set out policy recommendations to clarify the Code but did not address the drafting that would be needed to implement the changes. 

There were fears that the new Code was being 'rushed through' with insufficient time to subject it to industry scrutiny and comment.

Given the criticism levelled at the existing Code, it is unlikely that reform will be a simple task and therefore it is right for the government to take time to consider recommendations and engage with the industry as to any new proposals.   

It is hoped that a short delay in reforming the Code might lead to a framework that is functional for both landowners and operators.

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