The UK Government has published a new consultation to help set the terms and code for implementation of the new Telecommunications Infrastructure (Leasehold Property) Act 2021, which aims to make it quicker and cheaper for gigabit broadband ISPs to access big buildings (e.g. apartment blocks) when “rogue landlords” fail to respond.

Sadly, network operators (e.g. Openreach, Virgin Media, Hyperoptic etc.) often run into difficulty when attempting to contact landlords, such as while requesting permission to install a new service or offering to negotiate a long-term agreement for access (wayleave). Suffice to say that an unresponsive landlord can leave residents trapped on slower connections and the process for tackling this is often shockingly expensive.

Admittedly, some landlords may have legitimate concerns about damage to property, liability (e.g. health and safety rules) and low rental payments, among other things. Nevertheless, there are also plenty of cases where there may be no real downside to an operator wanting to improve the broadband connectivity of a building, except getting permission.

The new act, which was passed in March 2021, sought to tackle such issues by implementing a significantly cheaper and faster route for dispute resolution via a new tribunal process. Furthermore, landlords will also face a greater obligation to help facilitate the deployment of digital infrastructure when they receive a request from their tenants.

However, this new process will ONLY apply when a landlord has repeatedly failed to respond to requests for access to install a connection that a tenant within the building has requested.

What’s this consultation for?

Passing the Act is one thing, but before operators can take advantage of it various new codes and processes (i.e. the regulatory structure) need to be implemented. The consultation is thus seeking views on the terms that will accompany the interim Code rights acquired by operators following a successful application at the Tribunal (or the Sheriffs court in Scotland).

In addition, it also seeks views on extending the scope of the Act to include other property types beyond big residential buildings (such as business parks and office blocks), and on procedural matters relating to the application process, as well as the length of time for which interim rights should remain valid.

The proposed terms will also set out how, where and when operators may exercise the interim Code rights, as well as the rights and responsibilities of landowners. The intention is to maintain balance between the rights of broadband operators and landowners (even in their absence) and support those living in blocks of flats and apartments to access faster broadband.

Matt Warman, UK Minister for Digital Infrastructure, said:

“The aim of the Act is to encourage landowners to respond to requests for access issued by operators. These access rights are essential for the delivery of connectivity as operators are unable to deploy their services without first obtaining permission to install their equipment.

While we understand some landowners have legitimate reasons for not responding, it is difficult to understand why around 40% of industry requests go without any response. This is even more confusing when property owners are effectively being offered a free upgrade to their buildings, which will not only deliver improved digital services to their existing tenants, but in the longer term, prevent their properties becoming islands of not-spots in the sea of gigabit connections we are helping build.

The accompanying regulations are intended to provide clear guidance to operators, and assurances to landowners and site providers that:

(i) Part 4A orders will only be issued where landowners are genuinely unresponsive, and only where there is a request for a service from a leaseholder, and;

(ii) where operators successfully apply for the interim Code rights, that they undertake work to the highest standard, respect the property and do not stop trying to reach an agreement with the landowner for long-term access.”

The consultation period will run for 8 weeks from Wednesday 9th June 2021 to Wednesday 4th August 2021. The consultation also includes a summary of suggestions for the terms to include in a related Part 4A order (see below), which includes some useful details. Assuming all goes to plan, these changes could help to support the Government’s