The Electronic Communications Code: Key considerations for public bodies

Telecoms rights are becoming a strategic estate management issue

As public bodies accelerate regeneration, housing, infrastructure and digital connectivity programmes, telecoms rights are becoming an increasingly important part of estate management and project delivery.

The Electronic Communications Code (the Code) can affect development programmes, land acquisitions and asset strategies. For local authorities, NHS bodies and other public sector organisations, understanding how the Code interacts with wider statutory powers is essential to managing risk, avoiding delays and maintaining flexibility for future development.

While public bodies often have their own statutory powers and responsibilities, they should not assume these will automatically take precedence over the Code. In many situations, the Code applies to public bodies in much the same way as it does to private landowners.

Public bodies are not immune from the Code

Courts can impose Code Agreements over non-Crown public sector land where the paragraph 21 test is met, even where the public body objects. As set out in The Electronic Communications Code: Key landowner rights and operator risks | TLT LLP, the paragraph 21 test requires that the prejudice caused to the relevant person can be adequately compensated by money and that the public benefit likely to result from the order outweighs the prejudice to the relevant person.

Where a public body can demonstrate a genuine intention to redevelop land, the court cannot impose rights. As with private sector developers, the quality of the evidence supporting that redevelopment intention will be critical. See Developing land with telecoms apparatus: How the Electronic Communications Code can impact project delivery | TLT LLP for more information.

Regeneration: Plan for telecoms early

One of the most significant risks for public bodies is the interaction between telecoms rights and long-term regeneration programmes.

Issues commonly arise where:

• existing Code Rights are inherited following land acquisition;
• apparatus cannot easily be removed to facilitate development;
• termination rights involve lengthy statutory notice periods; or
• new apparatus is installed under permitted development rights before redevelopment plans have progressed.

Rights that appear relatively insignificant at the point of acquisition can create substantial delivery challenges later in a project's lifecycle. Telecoms considerations should therefore form part of early-stage programme planning and due diligence, rather than being treated as a specialist issue once development proposals are finalised.

Planning and compulsory purchase considerations

Under permitted development rights, operators can deploy or upgrade apparatus in certain circumstances without making a full planning application. This can result in telecoms infrastructure appearing more quickly than public bodies anticipate, particularly where regeneration proposals are still at an early stage.

Compulsory purchase powers present another important consideration. Where land is acquired through a CPO, existing Code Agreements transfer with the land. Authorities may therefore inherit telecoms rights that affect the timing, design or delivery of future development proposals.

For regeneration schemes in particular, telecoms due diligence should be undertaken as early as possible. Existing telecoms rights can have a direct impact on programme risk, delivery timetables and development flexibility.

The best value challenge

The Code values compensation on a "no network" basis, meaning any value attributable to the operator's network is disregarded. This frequently results in lower compensation than might otherwise be achieved in an open market transaction. Early advice on valuation methodology and the interaction with best value duties will be important.

Crown Land: A distinct statutory position

Unlike other public bodies, the Crown cannot be compelled to grant Code Rights, although it may choose to waive that protection and enter into Code Agreements voluntarily.

Where Code rights are sought over Crown Land, operators must engage with the appropriate authority, such as the Crown Estate Commissioners or the relevant government department.

Highway land: Understanding the extent of operator rights

Highway land operates under a significantly more operator-friendly regime than most other categories of public sector land. Operators have extensive rights to install, maintain, inspect, repair and upgrade apparatus in, on, under or along public highways without the need for a written Code Agreement. In practice, this means operators can often carry out works that would require a formal agreement if undertaken on other public sector land.

Statutory undertakers and national infrastructure

For entities such as Network Rail, port authorities and utility companies, any proposed non-emergency works that may interfere with an operator's network must be notified to the operator in advance.  Operators can serve a counter-notice requiring alterations to apparatus as a result of the proposed works and, where alterations are required, the statutory undertaker must pay the operator damages.  Where a statutory undertaker acts in contravention of the Code, it may have to pay fines.

Historic England and Natural England

The interaction with the Code for these bodies centres on the tension between conservation and development. The Code cannot override statutory requirements such as Scheduled Monument Consent under the Ancient Monuments and Archaeological Areas Act 1979. In these cases, whilst Code Rights can be granted, any statutory process required elsewhere must also be followed.  Public bodies managing heritage or natural assets should not assume that those protections will automatically prevent Code Rights from arising, but they do give an additional layer of procedural protection.

Key actions for public bodies

Public bodies should consider:

• Auditing telecoms infrastructure across their estate to understand what apparatus is present and on what basis.
• Reviewing existing Code Agreements to identify restrictions, termination rights and relocation provisions.
• Investigating telecoms rights early in regeneration and acquisition projects to avoid programme delays.
• Understanding the position for highway land, where operators benefit from extensive statutory rights.
• Considering the interaction between Code compensation and best value duties before decisions are made.
• Taking a proactive rather than reactive approach to operator engagement and telecoms asset management.

Looking ahead

Demand for digital connectivity and resilient communications infrastructure will continue to increase. As 5G networks expand and infrastructure density grows, public bodies are likely to see more operator activity across their estates and highway assets.

The challenge is no longer simply understanding the Code, it is understanding how telecoms rights interact with wider regeneration, infrastructure and estate management objectives.

Public bodies that identify telecoms interests early, build them into programme planning and engage proactively with operators will be better placed to balance infrastructure delivery with their own long-term strategic priorities.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2026.  For more information see our terms & conditions.