Standards Development

Scope

Whilst we would of course welcome comments on any aspect of the draft agreements and their form, we would like to highlight the following questions:

1. The documents have been drafted as agreements rather than leases. The justification for this is that the Electronic Communications Code (the "Code") makes no reference to a lease or to a demised area, and instead refers to the rights that may be granted to operators in respect of land. It is therefore argued that there is no need for the documents to be drafted as leases. However, it is acknowledged that there may / will be a significant number of instances where an operator in reality would have exclusive possession of a particular area of land, and that in such situations the agreements may be treated as leases by the courts. Do consultees agree with the decision to draft the documents as agreements, and with the way in which this has been done?

2. The agreements envisage notice being given by the operator to the site provider in the event of sharing pursuant to paragraph 17 of the Code. The operator's ability to share is not conditional upon such notice being given, and so this proposal does not fall foul of the anti-avoidance provisions in the Code. However, it is intended to help strike a balance between the parties' interests, and in particular to give site providers the opportunity to consider whether the conditions at paragraph 17 have been met. Do consultees agree with the inclusion of this proposal, and in either case why?

3. The agreements provide for the operator to reimburse the landlord a fair and reasonable proportion (taking into account the proportion of the landlord's property occupied by the operator) of the cost of insuring the landlord's property. However, it is acknowledged that this sum may well be small. Do consultees agree with the inclusion of this provision, and in either case why? Is there merit in having a similar obligation in the rooftop agreement / both agreements relating to the cost of services provided by the site provider?

4. The agreements separate out certain rights in relation to the installation etc. of the Cables and Equipment. The rationale for this is that operators may wish to be granted certain rights which are not specifically listed in the rights set out at paragraph 3 of the Code (although admittedly such rights may be implicitly included). However, these rights have been included to attempt to strike a fair balance between the parties' interests (although ultimately the terms of any agreement shall of course be a matter of negotiation). They are separated for clarity, and to avoid any misunderstanding that such rights are expressly included among the paragraph 3 Code rights. Do consultees agree with this approach, and in either case why?

5. The agreements contain a broad indemnity which includes the cost of any resulting delay etc. upon works the site provider may intend to carry out / effect upon the value of the site provider's interest. Whilst the agreements contain a provision for payment of compensation as calculated at the date of the agreement, the indemnity is intended to ensure that a site provider is adequately compensated for loss or damage which cannot be ascertained at that time. Do consultees agree with this approach, and in either case why?

6. The rooftop agreement currently includes a "lift & shift" mechanism. Do consultees consider that its inclusion is useful and effective?

7. It is intended that the draft agreements will be accompanied by a guidance note, explaining some the rationale behind the drafting and where we consider this would be helpful. By way of example, this would cover (amongst other points):

• the fact that the definition of Access Arrangements is intended to give the parties wide scope to negotiate and agree bespoke arrangements (e.g. in relation to sporting rights) or annex an access protocol as appropriate;

• the optional nature of certain provisions which may be a matter of negotiation (e.g. the Operator's break right, both generally and following expiry of an associated contract to provide a service);

• if applicable, an explanation for the fact that these documents have been drafted as agreements rather than leases. Is there anything in particular consultees would wish to see addressed in this guidance note?

8. Is there anything in particular consultees would wish to see addressed in this guidance note?