Consultation on telecommunication operator's rights to access property to install broadband

Summary

The UK Government has launched a Consultation on regulations to implement the Telecommunications Infrastructure (Leasehold Property) Act. The Act will grant operators interim rights under the Electronic Communications Code where landowners fail to respond to their requests to allow them access to blocks of flats to install broadband for residential tenants. The Consultation focuses on proposals for the terms that will accompany those interim Code rights, but importantly also suggests that the scope of the Act may be extended to certain commercial properties such as office blocks and business parks.

Context and Purpose of Consultation

The Telecommunications Infrastructure (Leasehold Property) Act (“Act”) received Royal Assent in March 2021, although most of it has yet to come into force (see this Law-Now for further detail on the Act). The Act, which applies to the United Kingdom, is aimed at the scenario where a residential tenant in say a block of flats wants an Ofcom registered operator under the Electronic Communications Code (“Code”) to provide them with an electronic communications service such as broadband, but the operator is unable to do so because the owner of the building (landowner) fails to respond to the operator’s requests to allow it access to provide the service. The Act provides a mechanism for the operator to make an application to the First-tier Tribunal (or the Sheriffs court in Scotland) for what is known as a “Part 4A order” imposing on the landowner an interim agreement conferring Code rights so that the operator can access the building to install the service.

On 9 June 2021 the Department for Digital, Culture, Media & Sport (“DCMS”) published a Consultation on regulations to implement the Act, which seeks views on the terms which will accompany the interim Code rights provided to operators by the Part 4A order. The Consultation closes on 4 August 2021.

Key policy objectives and structure of Consultation

The regulations are intended to provide clear guidance to operators and assurances to landowners that:

• the Part 4A orders will only be issued where landowners are genuinely unresponsive and there is a request for a service from a tenant, and
• where the operator successfully applies for the interim Code rights, they will undertake work to the highest standard, respect the property and do not stop trying to reach an agreement with the landowner for long-term access.

The Consultation is in 2 main parts. The first seeks views on the terms that will accompany the interim Code rights acquired by operators following a successful application at the Tribunal/court for the Part 4A order. Those terms will set out how, where and when operators may exercise the interim rights, as well as the rights and responsibilities of the landowners. The second part seeks views on procedural matters relating to the application process and, interestingly and perhaps disconcertingly for some landowners, on extending the scope of the Act to include other property types (such as business parks and office blocks). Views are also sought on the duration of the interim rights.

Detail of the proposed terms to accompany the interim Code rights

In creating the list of areas that must be included in the terms, DCMS considered the standardised wayleave developed by the City of London as well as standard wayleave agreements of a number of the UK’s largest infrastructure providers, DCMS recognising that standardised access agreements based on landowner/operator discussions create a solid foundation to be built on.

The Consultation makes proposals for the terms, the intention being to maintain a balance between the rights of operators and landowners and support those living in blocks of flats and apartments to access broadband. Just to mention a few of the proposals:

• Operators must send details of the proposed works being carried out to the landowner no less than 5 working days prior to the proposed installation. This may be regarded by landowners as providing too little advance notice.
• Operators will be responsible for undertaking work and completing the installation to a reasonable professional standard rectifying any damage caused during the installation and ensuring that, at the end of the works, the property is restored to as near its original condition as possible or to the landowner’s reasonable satisfaction.
• Operators will be required to have insurance before undertaking any work, which must be sufficient to cover any damage that may occur, or provide indemnification for the landowner for the same. The minimum value of that insurance should be £5,000,000.
• Operators should, for the duration of the Part 4A order, have the right to re-enter the property to maintain and upgrade the apparatus - landowners will be concerned to ensure that there are suitable conditions for such re-entry.
• The interim rights should expire after 18 months, the maximum available under the Act.

Importance for operator to evidence that they tried to communicate with the landowner

Since the Part 4A order allows operators to enter private property without the express permission of the property’s owner, DCMS states that this should only be used where all reasonable efforts to communicate with the landowner have failed. It is, therefore, important that operators can demonstrate that they have taken steps to identify the landowner and have been issuing notices to the correct person at the correct address, or have otherwise undertaken a reasonable level of investigation that has determined that the landowner is unidentifiable. To support this, there will be mandatory requirements to do Land Registry searches and engage with the resident who requested the broadband service in relation to the landowner’s identity.

It is also proposed that operators should be required to make any Part 4A application within 42 days of issuing a final warning notice on the landowner requesting access.

Possibility of extending Act’s scope to commercial property

Perhaps most disconcerting for some landowners is the suggestion in the Consultation that these new rights for operators, faced with unresponsive landowners, may extend beyond multiple dwelling buildings such as blocks of flats to other types of multiple occupation buildings such as office blocks and business parks. The Act, as drafted, only extends to multi-dwelling buildings, but contains powers for the Secretary of State to extend its scope to cover other property types via regulation.

How to respond

The Consultation document on page 5 provides details on how to respond. A reminder that the Consultation closes on 4 August 2021.