The Product Security and Telecommunications Infrastructure (PSTI) Bill is now in force after having received Royal Assent on 6 December 2022. We caught up with one of our Graduate Surveyors, Will Jackson, for his thoughts on how this will impact his clients and the work he does in our Telecoms team.
When introduced, the Bill promised to amend the Electronic Communications Code 2017 (ECC) to support the quick and efficient rollout of gigabit-capable broadband and 5G networks to businesses and households in a way that balances the interests of landowners, telecom operators and the public. The immediate response from Site Providers and those who act for them implies that it may further tilt the balance of power between Landlords and Operators towards the latter, even more so than the ECC does already.
The stated aim of the legislation is to help calm the process of settling agreements for new sites and for those in which the existing lease is being renewed. The most pertinent points of the PSTI are as follows.
Alternative Dispute Resolution
Operators are now obligated to consider Alternative Dispute Resolution (ADR) before they can apply to a court for a judgement and must make site providers aware of ADR as an option in correspondence and when serving notices upon them. It is hoped this will ensure that fewer cases end up in the courts, where the threat of the operator’s superior financial power can frighten site providers into agreeing to lesser terms, just to avoid the costs of going to court.
Rights to upgrade and share apparatus
The PSTI has now made sharing of apparatus a Code right, whereby operators with Code Rights may share and upgrade apparatus installed on land, regardless of when it was installed.
Operators will now have the right under the Code to upgrade apparatus that is installed under subsisting agreements (those agreements which were already existing when the Code came into force). For site providers, this amendment will likely substantially reduce the amount they would have been able to charge for the installation of extra equipment.
The three caveats of the new upgrading and sharing rights are:
- That the upgrade or sharing has no adverse impact on the land.
- That the upgrade or sharing imposes no additional burden upon any person with an interest in the land.
- That the Operator attaches a notice to the relevant land for a period of at least 21 days before the action.
Renewal of Code agreements which fall within the Landlord and Tenant Act 1954
Perhaps most controversially, the PSTI will make it so that existing leases that are under the 1954 Landlord and Tenant Act no longer benefit from a valuation upon renewal under S.34 of the Act and must be dealt with by paragraph 24 of the Code instead. The 54 Act will include a replication of paragraph 24 within an amended S.34a.
Given the importance of the 1954 Landlord & Tenant Act and its prevalence throughout the entire Commercial Real Estate sector, this part of the Act may be unprecedented and underlines the government’s commitment to the rollout of a world-class communication network, possibly at the expense of the site provider who must host such sites on their land.
Unresponsive occupiers
The PSTI has created a set of actions that operators must follow in matters where a site provider or landowner is unresponsive to their attempts to engage. Where the subject of the operator’s request for Code Rights continues to be unresponsive, the matter can now be decided by a court order which will grant those rights regardless.
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