Local Government Lawyer Home Page


Sharpe Edge Webpage Banner

Welcome to Sharpe Edge, Sharpe Pritchard’s local government legal hub on Local Government Lawyer.

Sharpe Edge features news, views and analysis from our team of specialist local government lawyers working at the heart of the latest legal developments. Sharpe Edge platform is also the only place where local government lawyers can get e-access to two law books by our Head of Local Government Rob Hann: The Guide to Local Authority Charging and Trading Powers (‘LACAT’) and The Guide to Local Authority Companies and Partnerships (‘LACAP’).

 

                                                                                                  

Slide background

Changes to the Electronic Communications Code

Icons CourtThe Department for Digital, Culture, Media and Sport has commenced a consultation on changes to the Electronic Communications Code 2017 (the “Code”). James Nelson, Lillee Reid-Hunt and Natasha Barlow report.

The introduction of the Code brought about a major overhaul to pre-existing telecommunications legislation, namely in relation to agreements concerning telecoms apparatus on land. However, the new law has raised numerous concerns for landowners about the wide range of rights afforded to operators under the Code, often to the detriment of landowners.

The government has commenced consultation on the basis that the practical operation of the Code has, in some circumstances, not had the desired effect originally intended. In many instances, negotiations between operators and landowners since the inception of the new law has been far from collaborative and judges have repeatedly tried to reemphasise the fact that parties needed to make a better effort to come to agreement.

The consultation does not set out any detailed proposals at this stage, but identifies three main areas at issue for which it invites participation from both landowners and operators:

  • Issues relating to obtaining and using Code agreements;
  • Rights to upgrade and share; and
  • Difficulties specifically relating to the renewal of expired agreements.

1. Obtaining and using Code agreements

The consultation sets out that there are issues and delays concerning the negotiation of Code agreements – specifically stating that there is a reported ‘lack of engagement and collaboration’ between operators and landowners. Further, the failure of parties to consider or abide by the tenets of the Ofcom Code of Practice (in relation to the Code) is quoted as another area of potential reform, with the consultation raising the possibility of updating and/or strengthening the Code of Practice.

Controversially, the government has confirmed that the ‘no scheme’ method of valuing sites will not be considered for amendment under the consultation. Arguably the most contentious feature of the new Code, the ‘no scheme’ element has made entering into Code agreements a far less endearing offer to many landowners, as the rental payment they receive in return for providing their land is perhaps the only direct benefit they gain in return. A new campaign called ‘Protect and Connect’ is seeking reform on this exact point – citing in some instances that there has been a 90% reduction in rent for landowners as a consequence of the new legislation – leading the campaign to denounce the current legislative regime as the ‘great mobile mast rip off’!

It isalso proposed that a statutory process is introduced for monitoring and raising complaints relating to non-compliance with the Ofcom Code of Practice, alongside a new Alternative Dispute Resolution Scheme specifically for Code disagreements. There is also discussion of a faster and more cost-effective process allowing operators to proceed where landowners are unidentifiable or unresponsive. The consultation seeks views on how this process would work in practice.

A further issue the government has identified is that while the parties can vary the terms of a Code agreement during its term, changes cannot be imposed by the court if the parties cannot come to an agreement. The consultation proposes that circumstances be set out where modified changes to rights or terms under Code agreements can be imposed by the court. It is suggested that a public benefit test be put in place (similar to that which decides whether a Code agreement is enforced in the first place) to determine whether an agreement can be modified.

The potential issue for landowners is that public benefit test (being that the public benefit of having high quality telecoms services outweighs the prejudice to the landowner) is difficult to overcome unless there are compelling prejudicial reasons at hand. If this proposition becomes law, operators may have another very useful weapon in their armoury to utilise should they wish to vary or remove agreed terms in the interest of the ‘public good’.

2. Rights to upgrade and share apparatus

One of the government’s core aims regarding the rollout of digital infrastructure is to reduce the cost, time and volume of apparatus required for operators to develop their networks. It is reasoned that this will increase the number of operators in a given area, providing greater competition and choice to consumers.

The Code confers automatic rights on operators to upgrade their own apparatus and share the use of it with other operators, provided it will not have an adverse impact on the appearance of the apparatus or impose an additional burden on the landowner. However, this causes disagreements between landowners and operators, exacerbated by the lack of clarity around what constitutes an adverse impact.

The consultation proposes amending the wording of these automatic rights to make it clear what measures operators can take without requiring the permission of the landowner. It is further recommended that automatic rights are extended to operators subject to pre-2017 agreements in limited circumstances. This would amount to retrospective legislation and begs the question: what has changed in four years, especially given that the government decision in 2017 not to apply the new law retrospectively was on the basis that cost savings would be limited (and the consequential effect on investment and coverage would also be relatively small)?

While the circumstances proposed in the paper are narrowly prescribed to cover only upgrades or sharing that have very little or no impact on the landowner, this would still reduce a landowner’s control over the land in a way which may not have been anticipated at the outset of an agreement.

3. Expired agreements

There is a reported lack of clarity with regards the expiration and renewal of Code agreements. Under Part 5 of the Code, once an agreement expires, the operator can continue to occupy the site unless a new agreement is completed or the landowner requires the operator to vacate. Currently, Part 5 only applies to certain Code agreements, but it is proposed that it is extended to all agreements, including those entered into prior to 2017, to address this inconsistency.

It is also suggested that all disputes under the Code should be subject to a six-month limit for the court to hear the case. Additionally, the proposal that either party should be able apply for an interim order relating to a renewal agreement would remove any benefit to one of the parties in delaying negotiations in order to maintain the terms of the old agreement – such measures are therefore intended to encourage prompt negotiations between the parties. Following such an interim order, if the court subsequently imposes the renewal agreement, it would be able to backdate the financial terms.

Concluding Remarks

The proposed consultation serves to address key areas of reform in a fast-moving area of law that has seen its fair share of litigation over the past four years. Few would disagree with the notion that the legislation should adapt to the constantly evolving landscape of telecommunications technology and digital infrastructure – nevertheless, the law should strike a fair balance where possible.

Whilst the majority of proposals will be welcomed by operators, landowners may be concerned that some of the suggested modifications to the law further tip the balance of power in favour of operators. The refusal to re-address the valuation scheme in particular could conceivably continue to be a barrier to successful negotiation between operators and landowners.

While it is clearly important that operators are able to widen networks to extend connectivity throughout the country, parity is important and the safeguards of landowners should not be unduly forfeited to make way for this phase of digital transformation.

The closing date for responses to the consultation is 24 March 2021.

If you are seeking expert advice on your rights and options in connection with the Code, an existing agreement or a proposed agreement, then please get in touch with James Nelson or Lillee Reid-Hunt.

James Nelson is a solicitor, Lillee Reid-Hunt an associate and Natasha Barlow a trainee solicitor at Sharpe Pritchard LLP

For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.

sharpe edge 600x100

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.

 

LACAT BookFREE download!

A Guide to Local Authority Charging and Trading Powers

Written and edited by Sharpe Pritchard’s Head of Local Government, Rob Hann,

A Guide to Local Authority Charging and Trading Powers covers:

• Updated charging powers compendium          • Commercial trading options

• Teckal ‘public to public’                                    • Localism Act

FREE DOWNLOAD

LACAT BookAvailable to buy:

A Guide to Local Authority Companies and Partnerships

An invaluable, comprehensive toolkit for lawyers, law firms and others advising
on or participating in Local Authority Companies and Partnerships”

- Local Authority Chief Executive

BUY NOW

  More Articles

<a href=

Environment Act 2021: What Does it Mean for Waste Authorities?

Sally Stock, Juli Lau, Ellen Painter and Beth Edwards discuss notable changes made to the Environment Bill 2021-2022, which received Royal Assent on the 9th November.
<a href=

ESG and its relevance to the public sector

Peter Collins and Sydney Chandler discuss the growing importance of Environmental, Social, and Governance criteria in public procurement.
<a href=

JCT 101: Time and Punishment

Rachel Murray-Smith, Clare Mendelle and Laura Campbell discuss a common Construction scenario regarding the Practical Completion of a project, and the position under the unamended JCT DB 2016.
Icons Court

The importance of due process, communication and fairness in employee conduct investigations – what you need to know.

Julie Bann and James Hughes discuss the importance of fairness in employee conduct investigations, taking a look at the London Borough of Hammersmith and Fulham -v- Mr S Keable case.
<a href=

Becoming More Inclusive: VAT and the Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021

Juli Lau, Natasha Barlow and Beth Edwards examine the recently published Public Procurement Regulations 2021, focussing upon amendments to the thresholds within various procurement regimes.
<a href=

The LADs are Alright

Laura Campbell discusses liquidated damages in construction contracts, focussing upon the long-running Triple Point saga which ended in the Supreme Court this year.
<a href=

Procurement Policy Note 08/21

Juli Lau and Beth Edwards outline Procurement Policy Note 08/21, recently published by the Cabinet office.
Icons Court

Hard Times: Improving Air Quality with Clean Air Zones

Rob Hann and James Goldthorpe examine the introduction of Clean Air Zones to improve air quality across the UK.
<a href=

Autumn Budget Spending Review 2021 – What Public Bodies Need To Know

Rob Hann and James Hughes examine the Autumn Budget Spending Review 2021, looking at what Public Bodies need to know.
<a href=

Net Zero – What’s new for local authorities?

Steve Gummer and Sophie Drysdale look at two major climate publications: the Heat and Buildings Strategy and the Net Zero Strategy.
Icons Hazard

Jumping to conclusions: Final Statements, liquidated damages and material breaches of natural justice

Michael Comba looks at a recent Technology and Construction Court case that provides useful guidance on the JCT’s procedural requirements on disputing Final Statements.
Icons Court

Three times one equals one: Several disputed payment applications amount to a single dispute

Michael Comba considers a case in which the High Court dismissed an employer’s argument that an adjudicator lacked jurisdiction because the referral concerned three separate payment applications and, therefore, comprised three separate disputes.
<a href=

Warm feelings or hot air: the Heat and Buildings Strategy and Heat Networks

This week the government published its Heat and Buildings Strategy (Strategy). This contained vital innovations and essential step changes in terms of how heating is provided, writes Steve Gummer.
<a href=

Procurement reforms: update from Cabinet Office

Rob Hann, Nicola Sumner and Juli Lau assess the Cabinet Office's update on the progress of the government's public procurement reforms.
Icons Court

Bond, Performance Bond. Delivering value for the Public Sector?

Justin Mendelle examines whether public sector clients achieve value for money from the provision of performance bonds.
Icons Hazard

Not so personal messages: R. (on the application of Good Law Project Ltd) v Secretary of State for Health and Social Care and Abingdon Health Plc [2021] EWHC 2595 (TCC)

Nicola Sumner, Juli Lau and Beth Edwards look at The Good Law Project's challenge of the direct award by the Secretary of State for Health and Social Care of three contracts for the production and supply of rapid Covid-19 antibody tests (the “Contracts”).
<a href=

Insolvency – Termination and Beyond

Rachel Murray-Smith and Clare Mendelle consider the potential warning signs of, and the compliant manner for dealing with, contractor insolvency.
Icons Court

Settlement agreements – waiving Personal Injury claims

In the case of Farnham-Oliver v RM Educational Resources LTD, the Queen’s Bench Division of the High Court allowed a Personal Injury claim (“PI claim”) to be pursued by an employee against his former employer despite the parties signing a Settlement Agreement in respect of an Employment Tribunal claim on the same issue. Julie Bann and James Hughes report.
Icons Hazard

Mandatory Vaccination for Care Home Workers in England – Update

Rachel Murray-Smith and Francesca Gallagher look at the detail of the government's guidance on compulsory vaccination for care staff.
<a href=

Make your mind up! Liquidated Damages clause upheld despite Employer’s challenge

In the recent case of Eco World Ballymore (EWB) v Dobler[1] , an Employer took the unusual position of challenging their own entitlement to liquidated damages (LDs) on the ground that the LDs provision constituted an unenforceable penalty clause. Clare Mendelle and James Goldthorpe investigate.
<a href=

Are Collateral Warranties Construction Contracts? Timing is Key.

Clare Mendelle and Anna Sidebottom examine the recently decided case of Toppan v Simply[1], which has provided guidance on when collateral warranties may be considered “construction contracts” under the Housing Grants, Construction and Regeneration Act 1996 and so give the warranty holder the right to adjudicate.
Icons Court

Climate emergency or climate catastrophe?

Rob Hann asks how central & local government departments and councils can work together more effectively to combat the challenges to achieve net zero by 2050.
Icons Court

Big Problems Need Radical Solutions – Time to Play Monopoly with District Heating?

Steve Gummer examines how local authorities might make district heat networks a reality.
<a href=

The Judicial Review and Courts Bill

The Judicial Review and Courts Bill was introduced to the House last week on 21 July 2021. William Rose and Anna Sidebottom discuss the potential impact of the bill.
<a href=

Liquidated damages and termination

Clare Mendelle, Francesca Gallagher and James Goldthorpe provide an outline of the Supreme Court's recent decision in Triple Point Technology vs PTT Public Company Limited.

Mandatory Vaccination for Care Home Workers in England

The Government has announced that people working in care homes in England must be fully vaccinated against Covid-19 from October 2021, unless they have a medical exemption, write Rachel Murray-Smith and Francesca Gallagher.
Icons Court

Transparency in Procurement: Procurement Policy Note (“PPN”) 07/21

Julie Lau, Clare Mendelle and Beth Edwards outline the new regime for publishing procurement notices post-Brexit
Icons Court

When procurement law and contracts for interests in land meet

Colin Ricciardiello provides a case law update examining cases that have examined the overlap between a requirement to procure and a contract for the disposal of an interest in land.
tb w74 h74 crop int a734a5aec8e0dcb7849ee8ebeb84a53d

UK granted data protection adequacy decision

Charlotte Smith summarises the new data protection adequacy decision.

First Impressions on the New Subsidy Control Bill

Last week the Government published its new Subsidy Control Bill. The Bill represents a significant shift in the way in which subsidies are assessed and also provides some clarity about the regime that will replace the EU State aid regime, writes Peter Collins.
Icons Court

Managing new enforcement powers for councils under the Traffic Management Act 2004

Rob Hann considers the recent legislative changes to traffic management in England, including the introduction of Clean Air Zones and widening local authorities enforcement powers for moving traffic offences.
Icons Court

Implementing Net Zero: Taking account of Carbon Reduction Plans in the Procurement of Major Government Contracts

The Government recently published the Procurement Policy Note 06/21. This will require suppliers bidding for major government contracts to provide a Carbon Reduction Plan at the selection stage and commit to achieving Net Zero by 2050, writes Clare Mendelle and James Goldthorpe.
tb w74 h74 crop int a734a5aec8e0dcb7849ee8ebeb84a53d

Public Procurement Update June 2021

On 3 June 2021, the Government issued the National Procurement Policy Statement (NPPS), and the associated Procurement Policy Note (PPN). George Dale explains what each document does.

What a bind: Section 106 planning obligations where there are multiple land interests

Rachel Lee and Christos Paphiti consider whether the case of R (on the application of McLaren) v Woking Borough Council impacts upon local planning authorities (LPAs) ability to properly consider the land interests and parties as regards to performance of specific obligations.
Icons Court

The use of experts only works when everyone plays by the same rules

Colin Ricciardiello looks at the use of expert witnesses in the wake of an important recent decision.
Icons Court

Unlawful Award of Contract

The High Court has ruled that the Minister for the Cabinet Office, Michael Gove, broke the law by giving a contract to a market research company, Public First, who are run by long-time associates of his. Anna Sidebottom, Francesca Gallagher and Clare Mendelle report.
Slide background