Sparks Flying: Increasing Network Connectivity For Tenants

The Telecommunications Infrastructure (Leasehold Property) Act 2021 (the Act) received royal assent on 15 March 2021. The Act amends the Electronic Communications Code 2017 (the Code) by introducing a new Part 4A into the Communications Act 2003 and seeks to alleviate the frustration of operators who cannot install telecommunication infrastructure at leasehold properties due to unresponsive landlords. The issue of fast and reliable connectivity at home has become all the more pertinent in the last year and this Act seeks to redress a key area that delays tenants’ access to better networks.

The Act targets residential properties that are under multiple occupation, primarily blocks of flats. It does not apply to commercial premises. Tenants have existing rights under the Code to request that operators provide electronic communications services to their property (in fact, it is occupiers of land only that can grant Code rights). The operator in turn must give the landlord notice seeking agreement to exercise Code rights.

The Act now requires operators to issue a further two warning notices and a final notice on the landlord at specified intervals. If the landlord repeatedly fails to respond to these notices, the operator can apply to the Upper Tribunal for an interim order (a Part 4A Order). This process could be completed in as little as six weeks, which should reduce the time and cost to operators of pursuing uncommunicative landlords. This feeds into the government’s goal of increasing the speed and range of connectivity across the country.

The court will grant a Part 4A Order if it is satisfied that the notices specified above have been issued in accordance with the Act and that the landlord has not responded to the notices. A Part 4A Order will impose an interim agreement on the parties for a maximum term of 18 months, during which it is expected that the operator and the landlord can either agree a final Code agreement or the operator will apply to the Upper Tribunal for final Code rights under the existing Code process. The provisions of any interim Code agreement ordered as part of the Part 4A Order will be specified by regulations to be issued by the Secretary of State following consultation with operators and landlords and prior to the Act coming into force.

The court also has discretion to award compensation to the landlord for any loss or damage sustained in the exercise of the Part 4A Code right. However, the Act does not re-introduce any aspect of the payments under previous legislation that allowed landowners to take a cut of the income generated by operators i.e. the ‘no-network’ valuation methodology prescribed under the Code applies to any interim agreement ordered under Part 4A.

Landlords should note that they can stop the process for a Part 4A Order by responding to any of the operator’s notices within the specified period because this precludes the operator from applying for an order. The Act emphasises the importance of landlords engaging promptly with both tenants and operators in connection with any request for electronic communications services in order to avoid a Part 4A Order being imposed on them that could potentially result in less favourable terms than could be otherwise negotiated between them.

Lillee Reid-Hunt is a Senior Associate (New Zealand Qualified), James Nelson a Solicitor and Natasha Barlow a Trainee Solicitor at Sharpe Pritchard LLP

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