The Product Security and Telecommunications Infrastructure Bill received Royal Assent on 6 December 2022 and thus its provisions have come into force under the Product Security and Telecommunications Infrastructure Act 2022 (“the Act”). This amends the Electronic Communications Code (“the Code”) in a number of ways, the main aim of this being to make the process of entering into new agreements and renewing existing ones smoother. The most significant changes are discussed here.
Obligation to consider using Alternative Dispute Resolution
The Act amends the Code so that before applying to the court for a new agreement, applying to bring an agreement to an end, or applying to change the terms of an agreement, a party must first if it is reasonably practicable to do so consider the use of alternative dispute resolution procedures. It also requires that the related notices contain information about the availability of alternative dispute resolution in the event that the operator and site provider are unable to reach agreement.
Rights to upgrade and share apparatus
The Act extends the automatic right for operators to upgrade and share apparatus so that it applies to subsisting agreements (i.e. agreements which were entered into under the previous code). This is subject to the following caveats: (1) that the upgrading or sharing has no adverse impact on the land, (2) that the upgrading or sharing imposes no burden on any person with an interest in the land, and (3) that the operator attaches a notice to the relevant land for a period of at least 21 days prior to upgrading or sharing the apparatus.
The Act also makes sharing apparatus a code right.
Renewal of Code agreements which fall within the Landlord and Tenant Act 1954
The Act amends the Landlord and Tenant Act 1954 so that where a protected tenancy is a subsisting agreement within the context of the Code, and its primary purpose is to confer code rights, the rent payable under a new tenancy granted by the court must be assessed on the same assumptions as those where a new agreement is granted under the Code. This means that it must be assumed that rights will not be granted to use the land for an electronic communications network and the automatic rights afforded by the Code do not apply.
The Landlord and Tenant Act 1954 is also amended so that jurisdiction to determine disputes over subsisting agreements that are protected tenancies can be heard by the First-tier and Upper Tribunal rather than the County Court.
The Act introduces a procedure whereby operators can serve a series of notices on occupiers who will not engage with a request for code rights, and this can ultimately lead to a court order imposing code rights. This only applies to certain types of land. More specifically it does not apply to land covered by buildings or used as a garden, park or other recreational area other than in exceptional circumstances.
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