Department For Culture Media Sport
What is an access agreement?
If a communications network provider needs to use another partys land in order to install, operate or maintain a digital communications network or system of infrastructure, they must obtain the other partys agreement to do this.
The government recognises the importance of digital communications networks for the United Kingdoms social and economic well-being. As a consequence, agreements between site providers and communications network providers take place against a specific legislative framework that aims to support digital communications deployment.
The legislative framework
The following guidance sets out best practice when negotiating and formalising agreements. Local authorities should refer to this page for advice ways to encourage and engage with requests from industry.
Agreements that give communications network operators rights to access private and public land and buildings for network installation and maintenance are regulated by the Electronic Communications Code (the Code). Refer to the section on legislation and regulation for further information. This guidance sets out best practice principles that DCMS recommends Local Authorities should be aware of when providing communications network operators with rights to access their land and assets, to ensure consistency with the legislative framework and Government policy.
The overarching aim of these principles is to help Local Authorities provide access to operators in ways that maximise the use of public sector land, buildings and other assets for providing UK consumers with high quality digital coverage and connectivity.
Forms of agreement
In order for a network provider to successfully connect a home, a business or a school with telecommunications infrastructure, they must obtain the right to do so from a landlord by signing an access agreement. Access agreements may take different forms, which will often depend on the right being sought.
The most common forms of agreement in digital communications deployment are wayleaves and leases.
Wayleave
A wayleave is a contractual agreement between a landowner or landlord and a telecommunications provider, where the landowner grants the network provider a licence with the right to access land and/or property, to install and/or maintain electronic communications apparatus. Wayleaves are commonly used for the deployment of fixed-line broadband infrastructure.
Lease
A lease is a contractual agreement in which the owner of property grants a right to use the property for a specified period of time in return for specific periodic payments. Lease agreements are more common for mobile masts on land or rooftops.
In the case of a wayleave, the grantor of the wayleave receives a payment, either annually or one-off, and is commonly open-ended. The rights may include occupation but may simply be limited to rights to pass a cable or a fixed line on, under or over the land (and may not be precise as to the location).
A lease agreement is usually for a fixed period of time and confers occupational rights to a specific area of land or a building. For this reason, wayleaves are commonly used for the deployment of fixed-line broadband infrastructure, whereas lease agreements are more common for mobile masts on land or rooftops.
The difference between these forms of agreement had particular importance in the past, because the relevant form determined whether any subsequent purchaser of the land would be bound (required to uphold) rights granted under the agreement and what Land Registry requirements applied. The Code reforms introduced in 2017 dealt with this issue. Regardless of form of code agreement (wayleave or easement), a successors in title (subsequent owners or purchasers) remain bound to code rights previously agreed.
It remains useful for local authorities to be aware of the different forms that an access agreement can take. However, in all cases, the key issues to consider when negotiating an access agreement are:
- what rights the network provider wants or needs to successfully install, maintain or operate their network
- whether the local authority is able to grant these rights
- what the appropriate terms should be
What does a good agreement look like?
An effective agreement will:
- be made in writing
- record the terms agreed between the parties
- help ensure the rights and interests of all parties are protected for the duration of the agreement
- include a mechanism to prevent and resolve disputes or misunderstandings
Agreements will vary, depending on the rights being sought and the terms agreed. However, there are a number of available sources that local authorities may find useful when considering what to include in their own agreements. These include:
Ofcom guidance on the Electronic Communications Code
This may be useful when negotiating an agreement granting Code rights. The guidance includes:
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Standard terms (template agreement)
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Template notices. This is an overview of appropriate legal terms for various actions around the code agreement.
Digital Infrastructure Toolkit
A template access agreement that has been developed for granting rights to use central government sites. This toolkit could also be useful for local authority solutions.
The City of London standardised wayleave
The City of London have developed a toolkit to speed up wayleave agreements, which is endorsed by Greater London Authority for the London Plan. It includes:
Of these model agreements, only the Digital Infrastructure Toolkit and accompanying documents have been developed by central government. The others are not endorsed by central government, but they may be useful starting points depending on the context and nature of the agreement being sought.
Country Land and Business Association and National Farmers Union wayleave
The Country Land and Business Association and National Farmers Union has developed a standardised wayleave for enabling access to farmland, along with advisory wayleave fees. The wayleave is widely used across the country.
Greater London Authority template agreement
The Mayor of London engaged the British Standards Institution to work with a steering group made up of representatives of Transport for London, London local authorities, Cabinet Office, landlords, RICS, British Property Federation, network operators and their partnerships to develop consensus-driven impartial do