UK: Broadband Connections And The Electronic Communications Code

Last Updated: 9 May 2015
Article by Helen Garthwaite and Claire Haynes

Modern businesses depend on fast and reliable broadband connections. As a result, technology infrastructure must be considered early in the life of any project for construction or refurbishment of a building. These projects present an opportunity for landlords and businesses to future proof for the technology infrastructure potentially needed in the longer term.

Does the existing legislation meet the demands of modern broadband technology?

In February 2015 the Government launched a Consultation on its proposed reforms to the Electronic Communications Code.  The proposals have been widely welcomed as the existing Code is considered to be out of touch with the demands of modern technology.  

The draft Code grants operators increased rights to upgrade and share apparatus without site owner consent.  The Code creates a distinction between Code rights and security of tenure under the Landlord and Tenant Act 1954, clarifying the position for everyone. There are also benefits for site owners and landlords, including a clearer notice procedure for removal of unwanted and redundant equipment.  Overall the new Code probably favours operators as it facilitates the Government's objective of broadband expansion and reducing operator costs, and so it should also be good news for businesses. 

The proposed changes to UK legislation follow a strong lead from Europe.  The EU Commission's "Digital Agenda" aims to ensure that all Europeans have access to high speed internet within the next five years.  In May 2014 a European Directive was adopted to facilitate the distribution of high speed electronic communications networks and infrastructure. 

What will a developer or project manager be considering in relation to technology infrastructure when working on a construction or refurbishment project?

A number of legal documents usually govern the installation of broadband services in a building.  The most commonly used are a building contract, installation agreement, licence for alterations and a wayleave agreement. A wayleave agreement grants an operator rights to install and maintain its cabling and equipment within a building.  Whatever the nature of the contractual arrangements, it is wise to consider all of the documents together. 

As well as liability for risk, defects and delays, the following should be considered at the outset of a construction or refurbishment project:

  • The amount of cable space in a building will be limited and so thought should be given as to what the future requirements of the business are likely to be. Consideration will help to ensure that when the time comes, the space is available for the extra infrastructure required by the business.  There may be trade-offs, if space could potentially be used for other purposes. 
  • The new draft Electronic Communications Code increases the opportunities for operators to share and expand equipment without landlord consent.  Generic rights such as "to install equipment in the plant area" could grant an operator a right to increase their equipment without landlord consent.  It is therefore unlikely that landlords will agree to generic rights of this nature.  Businesses will need to provide clear specifications at the time of installation of the plant and cabling so that the correct rights can be granted in the legal documents.
  • Landlords like to control which operators provide services within their buildings so that they have reliable connections and reputable household names.  Currently it can be difficult for landlords to terminate wayleave agreements which are granted for an unlimited term.  If a business wishes to use a different broadband operator, this arrangement will require additional documentation and infrastructure which all comes at an extra cost.  A landlord may not always be inclined to co-operate as the terms of any lease are likely to restrict alterations.

A long term approach to electronic communications infrastructure is therefore recommended.

The future?

As businesses become more technologically astute, buildings and their legal documentation will also need to respond.  Hopefully any new Government will be keen to enshrine a new Electronic Communications Code in legislation taking on board the recommendations from the current Consultation.  If businesses are to compete in the global marketplace, it is essential that our built environment can do so within a flexible legal framework. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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