The current Electronic Communications Code underpins the government’s objective to promote the UK as a high-speed digital economy and to meet the public’s increasing demand for connectivity.
Before the code came into force, there was a five-year consultation involving the Law Commission and other stakeholders. Despite recommendations arising from the consultation, the telecoms code favours the rights of the telecoms operators over landowners. This resulted in the creation of an unprecedented set of ‘code rights’ designed to support the installation and maintenance of electronic communications networks; these code rights include (amongst others) rights to:
Many landowners remain unaware — until they are approached by a telecoms operator — of just how draconian the powers conferred by the code are. There is now little opportunity for the landowner to negotiate the terms of the occupation of any telecoms operator, as the code prescribes much of what goes into the lease.
In addition to the introduction of these rights, the code also fundamentally changed the way in which the rent for a site is calculated. Under the terms of the previous code, a landowner could negotiate rent with a telecoms operator based on the value of the site to the telecoms operator as part of its communications network, but the code specifically provides that it must be assumed, in calculating the rent, that the transaction “does not relate to the provision of electronic communications equipment”.
In short, in assessing the rent to be paid on any site, the parties must exclude any element of value relating to the telecoms operators’ intention to use the site as part of its network. The practical effect of this ‘no scheme’ assumption is that rent payable by telecoms providers has fallen very significantly, sometimes by as much as 90%.
In the context of the valuation challenges presented by the new telecoms code, it is worth making sure you understand the transitional provisions, as these can provide some relief from the impact of reduction in rental values.
In particular, it is worth noting that in Vodafone Ltd v Hanover Capital Ltd [2020] the County Court determined that an existing lease which was protected by the Landlord and Tenant Act 1954 was not bound by Part 5 of the code.
In EE Ltd v Moriss and others [2022], the telecoms operator was holding over under a lease protected by the Landlord and Tenant Act. Again, the County Court noted that Part 5 of the New Code did not apply when renewing subsisting agreements protected by the Landlord and Tenant Act 1954.
Importantly, they went on to say that the rent payable under any new tenancy granted was to be determined under section 34 of the Landlord and Tenant Act 1954, noting that there was no reason to assume the site would not be used for the purpose of an electronic communications network.
In short, if the existing lease is protected by the Landlord and Tenant Act 1954, then renewal will be under the Landlord and Tenant Act 1954 and the ‘no scheme’ assumption set out in the code will not apply to you.
New rent will be calculated based on the use of the property as part of the telecoms operator’s network, meaning the landowner will be able to seek a significantly higher rent than would be achievable under the code. Sadly, once this new lease is granted, that new lease will become subject to the code, so any subsequent renewal will be at a rent based in the ‘no scheme’ assumption set out in the code.
Further examples of cases involving the Electronic Communications Code can be found in our previous articles:
There’s been little evidence of interventions or financial management reviews this year and it appears the Education and Skills Funding Agency (ESFA) has re-focussed on financial delivery. It’s also telling that there were no discernible changes to the reporting of financial irregularities in the Academies Trust Handbook 2022.
The Children’s Commissioner, Rachel De Souza, has recently published a report “Beyond the labels: a SEND system which works for every child, every time”, which she intends to sit alongside the DfE’s SEND Review (2019) and SEND Green Paper (2022) and which she hopes will put children’s voices at the heart of the government’s review of SEND system.
There’s greater opportunity than ever for parents, carers and guardians to voice any concerns they have relating to their child’s education and for their concerns to be heard and to be taken seriously. While most staff in schools and academies are conscious of their legal duties relating to complaints management, many are struggling to cope with such a significant increase in the volume of complaints they must manage.
We’re pleased to collaborate with Lloyds Bank, who recently asked us and audit and risk specialists Crowe UK to offer guidance that academy trusts would find helpful when considering setting up a trading subsidiary.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
National law firm Browne Jacobson has advised long standing retail client, Wilko on the sale and leaseback of its Nottinghamshire distribution centre in Worksop to logistics specialist DHL for £48m.
The DfE has published new guidance and opened the application process for window two of the Trust Capacity Fund (TCaF) for 2022/2023, with a fund of £86m in trust capacity funding focused particularly on education investment areas.
The Independent Inquiry into Child Sexual Abuse was established in March 2015. We now have its report. As you would expect with such a broad scope, the report is long and makes a number of far-reaching recommendations. In this article, Dai Durbridge highlights seven of the 20 recommendations, sets out how they could impact on schools and suggests what steps to take now.
Browne Jacobson has appointed Amy Chapman, the former Group Legal Director of global built environment experts Mace Group, as its first Non-Executive Director (NED) of its Construction & Real Estate sector strategy board.
Browne Jacobson’s education team has been named as winner of the ‘Legal Advisors to Education Institutions’ category at the Education Investor Awards 2022 for a record sixth time.
Since the new Suspensions and Exclusions Statutory Guidance was published, we have received a lot of questions about the use of managed moves. For the first time, the Statutory Guidance does explain what a managed move is, but in relatively broad terms and does not cover the mechanics of how a managed move should operate.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Over 3000 young people from across the UK and Ireland took part in a virtual legal careers insight event, aimed at making the legal profession more diverse.
Holly Quirk, an associate barrister in Browne Jacobson’s Manchester office, was awarded the Legal Professional of the Year Award at this year’s Manchester Young Talent Awards.
The risk of assault against staff is, sadly, something that all schools need to consider carefully. Here one legal expert explains what they can do to protect staff and ensure they fulfil their duty of care.
Browne Jacobson’s education team has again been confirmed as a national powerhouse after securing five Tier 1 rankings relating to Education in the latest edition of Legal 500 and maintaining a Band 1 UK-wide ranking for Education in Chambers & Partners UK 2023.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
