The right to remain silent

“The Romans built roads, the Victorians canals and railways, and putting in place the right digital infrastructure across the country is an equally big challenge for our time.”

These are the opening words of the DSIT consultation on the implementation of s.67 of Product Security and Telecommunications Infrastructure Act 2022 (“PSTIA”)[1] that was announced on the 10 July.  It is an interesting place for the Minister to start because it reminds us that there is historic precedent for the State overriding private rights in pursuit of the roll out of national infrastructure.

Section 67 allows telecoms Operators a faster, and lower cost, route to secure Code rights over certain types of land (currently unbuilt upon land that is not a garden) if a landowner has been unresponsive to proposals to negotiate. The controversial provision was included in PSTIA but not immediately implemented because the Government hoped that the UK’s telecommunications network could develop successfully without it. Whilst the roll-out has been very successful with 75% of the UK now served by gigabit broadband coverage, there remain many areas that are unlikely to be connected to high speed internet if market forces are left unchecked and this could worsen existing inequalities. This has led the Government to reconsider their position.

At present, if an Operator has been unable to agree terms with a landowner then it can apply to Court under existing processes. However, from an Operator’s perspective these are slow and costly with cases taking from 7-12 months to resolve. Where the business case for delivery of infrastructure is marginal, that could mean that the Operator abandons proposals that could have a transformative benefit to a particular community.

However, on the other side of the scale, State imposition of rights strips private land owners of their right to control what happens on their land. The utilitarian argument for implementation of s.67 is most convincing if we envisage private land owners as a relatively uniform and well-resourced counterparty to telecoms Operators that are intent upon standing in the way of progress. It weakens considerably if the reason for a failure to respond by an individual landowner is lack of financial resource or because the efforts to make contact have been unsuccessful. As a real estate lawyer it pains me to say this but keeping Land Registry records up to date just isn’t the life or death priority for some people that it clearly should be.

A cynic might argue that there is a certain inevitability about engaging in a consultation process directed at unresponsive landowners. Leaving that aside, if s.67 is implemented, there will no longer be material protection for land owners in remaining unresponsive when approached by a telecoms operator for installation of equipment. The better route will be to engage in negotiations even if the chances of successfully concluding them seem remote.

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[1] Product Security and Telecommunications Infrastructure Act 2022