- Post-pandemic use of technology is still high and shows no signs of changing.
- The role of alternative dispute resolution to resolve issues such as renewing expired agreements and making efficient use of infrastructure.
The UK government is committed to investing in technology and infrastructure. Their ambition is to roll out lightning-fast, reliable broadband across the UK through a programme of maintenance and upgrading of digital infrastructure. This, they say, will be a key factor in driving the country’s economic recovery.
Key priorities
When the world went into lockdown, the internet became our primary connection to the outside world. The demand for online services was both sudden and colossal. From video conferencing to cloud-based data management, grocery shopping to entertainment streaming services—people’s lives moved online during 2020, and it’s not showing signs of changing back. Putting in place the digital infrastructure to support the demand for fast, reliable, widespread connectivity has become a key priority for governments worldwide.
Here in the UK, several network providers are actively installing the technology and infrastructure to make the government’s ambitions real. These network providers have legal status as ‘statutory undertakers’. It’s perhaps an unfortunate designation, but what it actually means is that they have general licence under law to carry out works to install telecoms infrastructure and cabling etc in cities, towns, and villages across the UK. Before they access a piece of land/property to undertake any installation works, a network provider should agree a ‘wayleave’ with the relevant owners. The purpose of a wayleave is to formalise agreement between a network provider and landowner on issues concerning the network provider’s access to land and the works that will be undertaken by them to install cabling and related services. A wayleave is a formal agreement which details the access a network provider will have regarding land/property, such as when they can go onto the property, what they can do there, and how they can do it.
Network providers often face difficulties in gaining access to land and property in order to install cabling and necessary technology. If a land/property owner denies the network provider access, or simply fails to engage in a dialogue, then the network provider can take the matter to court and obtain an order that grants them access. If this happens then the terms around access to the land/property may be set by the court rather than agreed between the landowners (aka ‘site providers’) and the network provider. Obviously, it is better for both parties to discuss and agree those terms rather than have them imposed by the court.
The role of ADR
There have been previous attempts to manage relationships between site providers and operators, which have proven less than successful—notably the Electronic Communications Code 2017 (ECC 2017). Hope to resolve these issues now hangs on the Product Security and Telecommunications Infrastructure Bill currently before Parliament. Part of this new legislation will require network providers to offer alternative dispute resolution (ADR) as a means of resolving issues around access to land/property. ADR would be offered to facilitate engagement between operators and site providers (and their representatives) so that negotiations on issues such as wayleaves are not drawn out and thus cause delays to network rollout. Other telecoms issues that may be dealt with by utilising appropriate ADR mechanisms include difficulties renewing expired agreements and making efficient use of infrastructure already in use.
The Royal Institute of Chartered Surveyors (RICS) is setting up an ADR service, partly because previous legislation and the ECC 2017 have failed to adequately resolve issues between site providers and operators, but also because the government (DCMS) and judiciary have expressed support for an independent ADR solution, tailored to the telecoms sector, that has real potential to reduce conflict, manage disputes effectively and speed up the development and growth of telecom networks.
Telecoms ADR service
The RICS Telecoms ADR Service (TAS) has been shaped in part as a result of consultation with stakeholders drawn from across the industry. It is not overly prescriptive. It is simple, flexible and impartial. It can be adapted to suit matters of varying size and complexity. It can be used early to help parties avoid conflict and also to determine differences that have crystallised into formal disputes that might otherwise end up being referred to the Upper Tribunal of the Lands Chamber. Considerations around feasibility in terms of time and costs associated with a referral to the Tribunal can play an important part in the decision as to whether or not to go down the ADR route.
TAS offers parties the ability to choose a method to resolve their disputes which is best for them, after taking into consideration factors such as the value and complexity of issues in dispute, and any requirement/desire to resolve matters quickly and/or amicably. TAS is an ADR solution in two parts (parties can use either or both)—mediation or independent determination.
Mediation is a form of ADR, which is often used to enable parties to avoid and resolve conflict. It is, to all intents, a discussion between two parties that is facilitated and moderated by an independent third-party mediator. The aim is to help both sides achieve a mutually agreeable outcome. The aim of mediation in the telecoms cases anticipated in the Bill is to help both sides to come to an agreement to avoid a situation arising which could conceivably result in matters ending up in court. Mediation is established method of avoiding unnecessary tensions and disputes. It involves the appointment of a knowledgeable and independent mediator by RICS, which is itself an impartial body. The mediator will work with the parties to facilitate a positive dialogue, ensure they understand their rights and obligations and help them to arrange for the necessary work to be done with a minimum of disruption.
Independent determination is a form of ADR which involves an impartial decision made by an experienced dispute resolution practitioner appointed by RICS. The independent determiner will be a surveyor or lawyer experienced in telecoms and related matters. Parties will agree, before the independent determination takes place, to be bound by the decision of the independent determiner. The aim is to achieve a final determination, as assessed by the independent determiner, on the issue in dispute so that it draws the matter to a close. Each party will put their case to the independent determiner and is invited to respond to the case put by the other side. The independent determiner is permitted to make their own enquiries and apply their own expertise to ensure their final decision is fully informed.
Disagreements can have an adverse impact on future relationships between operators and site providers. It is essential that conflict is avoided and, if that is not possible, then disputed issues are resolved swiftly and effectively, if the government is to realise its ambitions as a global leader in digital connectivity. The RICS Telecoms ADR Service is flexible, inexpensive, private, easy to use and it provides a range of methods to resolve costly and time-consuming disputes.
Ysella Jago, Dispute Resolution Senior Specialist, Royal Institute of Chartered Surveyors (www.rics.org/uk).
