OfCom publishes a new Code of Conduct for the Electronic Communications Code

The Code of Conduct seeks to introduce a common reference point for parties engaged in negotiations for the grant of rights to install telecoms equipment on land.

One of the more controversial elements of the new electronic communications code (“ECC”) was an operators’ power to survey potential sites before seeking permanent rights. The right to carry out a survey (or surveys) on a potential site is considered by operators to be fundamental to the operation of the ECC. It took the Court of Appeal to confirm a right to survey was conferred by the ECC. Martin Roger KC said of survey requests under the ECC “there are legitimate matters to argue …  but whether a small number of surveyors is permitted to go on a rooftop for a few hours on two or three occasions to establish whether it is even suitable for the installation of apparatus ought not to be one of them.” (Central St Giles [2019] UKUT 183 (LC) [judgment here].

Even so, landowners resisted operators’ rights of access to carry out surveys for reasons such as:

1. there being a risk to critical national infrastructure (London Underground [2021] UKUT 128 (LC) [judgment here]); and 
2. objecting to the need for intrusive works [St Martins [2021] UKUT 262 (LC) [judgment here]; and 
3. rejecting an operator’s risk assessment for safety reasons: [2022] UKUT 210 (LC) [judgment here]. 

The number of survey requests being referred to the tribunal appears to have slowed and OfCom’s newly published Code of Conduct is designed to accelerate this trend. It seeks to provide a reference framework to support site providers (landowners) and mobile operators to establish, develop and maintain effective working relations to the benefit of users of all communications services (basically everyone). 

The aims and scope are clear and well-meaning. Like all codes of conduct, it is not a legally binding document and so there will always be scope to criticise the document as lacking teeth and allowing sharp practice to continue in the market without recourse. 

However, there is likely to be a strong reaction from the First Tier Tribunal should it become clear that there are breaches of the Code of Conduct. Our clients dealing with operators wanting to place apparatus on their property must therefore be mindful of the provisions of this code and ensure due consideration is given. 

You can view the Code of Conduct here.

Please contact our expert property and property litigation teams for any queries in relation to the Electronic Communications Code.