Telecomms, superfast broadband and the Growth and Infrastructure Act 2013

The government hopes that improved broadband, particularly in rural areas, will help stimulate the economy and the Growth and Infrastructure Act 2013, which received Royal Assent on 25th April 2013, addresses this expectation in provisions to make it easier for telecoms companies to roll out superfast broadband services.

The Electronic Communications Code (Schedule 2 Telecommunications Act 1984) (the Code) is designed to facilitate the installation and maintenance of electronic communications networks. It gives rights to network providers to install and maintain apparatus in, over and under land.

The powers granted by the Code only apply to electronic communications operators who have obtained a direction from Ofcom that the Code applies to them (s106(3)(a) Communications Act 2003 (CA)).

S109(1) CA gives the Secretary of State power to make regulations imposing conditions and restrictions on the application of the Code to network operators. In exercising this power, the Secretary of State has to have regard to a number of considerations set out in s109(2) CA. These include "the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside" (s109(2)(b) CA).

Duties for public authorities to have regard to preserving the beauty of the countryside are also contained in the following legislation:

• S11A(2) of the National Parks and Access to the Countryside Act 1949.
• S85(1) of the Countryside and Rights of Way Act 2000.
• S17A(1) of the Norfolk and Suffolk Broads Act 1988.

S9, which came into force on 25 April 2013, relaxes the rules in s109 that regulate the siting of telecoms infrastructure. It adds a new condition that the Secretary of State must consider when imposing conditions and restrictions under s109: "the need to promote economic growth in the United Kingdom."

It also provides that, for any regulations the Secretary of State makes under s109, so long as they have complied with the duty to have regard to the need to protect the environment and conserve the natural beauty and amenity of the countryside in section 109(2)(b), they will be treated as having complied with the corresponding duties set out above. This provision only applies to regulations that expire on or before 6 April 2018.

 

The provisions clearly water down the legislation that aims to preserve the countryside. Originally the proposal was to disapply the duties to have regard to conserving the beauty of the countryside completely.

As enacted the effect should be that when the Secretary of State makes secondary legislation under s109, there will still be some room for argument about whether any applicable duties in the countryside preservation legislation have been fulfilled.

Indeed during the Bill’s consideration in the Lords, Communities Minister Baroness Hanham said (at 3:30pm) the rewording of the clause would ensure "that the duty that already exists under Section 109 of the Communications Act 2003 for the secretary of state to have regard for the environment and beauty of the countryside will be deemed to meet the 'have regard' duties set out in protected areas legislation, when the secretary of state comes to make regulations under Section 109".  We shall in due course see.

She added: "I emphasise that the purpose of our reforms is to ensure that fixed broadband deployment is not held back in the small minority of cases where local planning authorities and communications providers are not able to agree the best siting."

That being the case changes, to both the Town and Country Planning (General Permitted Development) Order 1995 and the Electronic Communications (Conditions and Restrictions) Regulations 2003 will be required and to that end a consultation Mobile connectivity in England has been jointly launched by the Department for Culture, Media and Sport and the Department for Communities and Local Government.

Among it’s key measures are:

• to increase the current permitted development height limit for antenna on existing buildings and structures from 4m to 6m. Above this threshold, the developer would need prior approval from the local planning authority (LPA) and the government says that the move would enable mobile operators to install antenna further back from the edge of a building, improving its visual appearance.
• to allow existing masts to be increased in height from 15m up to 20m and in width by up to a third subject to prior approval from the LPA. Heights above the 20m threshold would need planning permission.
• to increase the number of antenna systems allowed on buildings under permitted development rights. Buildings under 15m in height would be allowed up to three systems, up from the current limit of two, while those above 15m would be allowed five, up from three.
• to treble the permitted development total size limit for all dish antennae on buildings. Currently, buildings under 15m high have a total threshold of 1.5m and those above 3.5m. The government is proposing to increase the aggregated dish diameter total threshold to 4.5m and 10m respectively.

Given the earlier pronouncements the government has said that it would make sure "the appropriate safeguards remain firmly in place for protected areas".

The six-week consultation ends on 14 June.