What does the 2021 change to wayleave legislation mean for industry?

Trenches Law News   •   June 3rd, 2021

Till Sommer, Head of Policy at ISPA

The Telecommunications Infrastructure (Leasehold PropertyAct (TILP) recently received Royal Assent. But what does this mean for the industry, and, most importantly, UK consumers keen to benefit from better connectivity? Who better to ask than Till Sommer, Head of Policy at the Internet Service Providers Association…?

This is a very exciting time for the world of telecommunications, not just because companies are gearing up to connect most of the country to gigabit-capable broadband, but also because the Queen’ Speech – delivered just a few weeks ago – offers a chance to finally bust the barriers which are currently restricting progress. But to meet roll-out targets, we still need significant reform of the Electronic Communications Code – this will require commitment from Government and, crucially, Parliament.

While you might rightly ask yourself if the reform of the wayleave process through TILP is enough, the simple answer to that question is, “no”.

TILP – a missed opportunity

The fact that TILP finally became law earlier this year should have been well received within industry. After all, we know the extent of reform required as we look towards building a digital Britain fit for the future.

Nevertheless, stakeholders in the sector are feeling far more despondent than you might expect.

In truth, we have missed a huge opportunity. TILP should have driven real change. Instead, as things stand, it merely tinkers around the edges.

So why is this the case?

Wayleaves are naturally a complex space with a number of competing rights at play. Anticipating opposition form stakeholders with a vested interest in maintaining the way that wayleaves had been handled, the initial proposals from Government were not as bold as they should have been. And, arguably, the telecommunications sector could have done more to push politicians to go further.

As a result, only some individual problems have been addressed, mainly in relation to absentee landlords. Once implemented in full, TILP will ensure that residents in Multi Dwelling Units (MDUs) who want access to gigabit broadband, can be provided with a connection, even if the landowner or manager of the MDU lacks interest or never responds to requests. However, this only applies in urban areas. The general wayleave process remains too complicated, and fails to take account of the wider public interest.

Product Security and Telecommunications Infrastructure Bill – a new chance?

This is why the announcement of the Product Security and Telecommunications Infrastructure Bill in the Queen’s Speech is so important. While the details of the Bill have yet to be announced, the Government’s consultation on the Electronic Communications Code suggests that we will get a second chance at fundamental reform.

Wayleave negotiations do require a careful balance of rights and responsibilities. Property rights need to be protected, but they also need to be balanced with the public interest of upgrading the UK’s telecommunications networks. Despite the public interest being aligned with the interest of ISPs, the current wayleave regime tips the balance in favour of landholders. If you add to this the overall complexity of wayleaves and the need to rely on legal and professional advice throughout the process, it is no wonder that the regime has always been a thorn in the side of ISPs.

However, it is the public interest that makes a rebalancing of the regime so important. ISPs are ramping up their roll-out programmes to meet their own ambitions and Government targets. This means that it will simply not be possible for ISPs to pause roll-out in one area of the country to accommodate one tricky wayleave negotiation. Instead, the roll-out programme will move on, leaving pockets of office and residential blocks stuck on current generation products. It is for this reason that we need to rebalance wayleave negotiations in favour of development, future-proofing office blocks, private estates and crucially social housing.

The need for bold action

Our fear is that, without bold action, and fundamental reform, the country will end up with pockets of buildings that don’t have access to the connectivity required in the future. Right now, this may be nothing more than a frustration, but in 5-10 years’ time, it will have become a huge problem as the digital divide widens, and widens, and widens. Accordingly, we need brave and ambitious proposals from Government now, and we need Parliamentarians who are ready and willing to make the right choice – even in the face of a well-funded campaign trying its best to maintain the status quo – and enable future-proof digital connectivity for everyone.