After 12 months of debate, the Product Security and Telecommunications Infrastructure Act 2022 (PSTIA) has finally received Royal Assent, and sections 27, 76 – 78 and 80 came into force from 6 December 2022, with the remaining provisions set to come into force in the future, in accordance with regulations.
PSTIA is intended to support the rollout of future-proof, gigabit-capable broadband and 5G networks in a way that balances the interest of landowners, operators and the public, align the procedure and framework for renewal agreements with new agreements, to encourage collaborative negotiations and to introduce measures that will optimise the use of existing infrastructure.
What has changed?
Readers may recall our previous report that in November 2021, the Government introduced the Product Security and Telecommunications Infrastructure Bill into Parliament.
PSTIA was put forward as a government response to the issues raised at consultation by stakeholders including a stalled market, inconsistent assessment of rents for protected and unprotected leases and uncertainty about who the “occupier” is, and as a result, where Electronic Communication Code (Code) powers could be used.
Though a number of changes were put forward, not all of those were accepted. Most notably, the Government chose not to enact the proposed ‘amendment 17’ which would have resulted in the Code going through an independent review within three months of PSTIA coming into force. Some commentators have called this “a missed opportunity” notwithstanding the cost saving the Government hopes this will make.
By way of summary, the key changes are:
- The definition of an Occupier has been removed from the Code, on the basis that it was dealt with in the Supreme Court decision in Compton Beauchamp. Our comments on that case can be found here.
- If the Secretary of State provides a certificate that the application of Code rights would prejudice the country’s national security, it is mandatory for the Court to make an order of refusal.
- There is a new requirement for an operator to consider using Alternative Dispute Resolution (“ADR”) to settle disputes before issuing applications. It is for the Operator to ensure that a landowner is aware of ADR, and the Tribunal may make a costs order if parties unreasonably refuse to engage in ADR. We are interested to see whether, as enacted, this will be sufficiently robust enough to change how Operators act and reduce the amount of litigation in the area. We fear that it may create a tick box exercise for Operators.
- PSTIA introduces the new Part 4ZA procedure whereby Operators can apply to Court to make an order which will impose an agreement between the required grantor and Operator to confer the Code rights identified in a request notice, or to bind the required grantor in respect of certain categories of land. The Operator can only do this if the procedure (including the service of four separate notices) has not been responded to, and seeks to address an issue which attracted most attention during the consultation: that some occupiers are unresponsive.
- Subsisting agreements are now subject to paragraph 17 rights to upgrade and share apparatus. These rights are limited to apparatus installed under land and are only exercisable where there is no burden on the other party to the agreement and no adverse impact on land where the apparatus is situated. A similar right applies where there is no subsisting agreement in place, but the apparatus was installed before December 2003.
- The right to share apparatus with another operator and access the land and carry out works for the purpose of sharing apparatus is now expressly included as a Code right.
- The 1954 Act has been amended to align the procedures more closely with Part 5 of the code, including:
We note that as of this week, only section 27, sections 76-78 and section 80 have come into force (i.e. dealing with transitional measures and jurisdictions) and that there has been no date proposed for the rest of the Act to come into force. We understand that these are to be subject to transitional provisions which have not yet been determined.
PSTIA can be read in full here: Product Security and Telecommunications Infrastructure Act 2022 (legislation.gov.uk)
December 2022 brings further telecommunications news, as the Telecommunications Infrastructure (Leasehold Property) (Terms of Agreement) Regulations 2022 comes into force in England and Wales on 26 December 2022, and in Scotland on 1 July 2023, and can be read in full here. The regulations relate to two notices which Operators can now use under Part 4A of the Code, so that they can access dwelling units, where a Landlord has failed to respond to a customer’s request.