Out-Law News 3 min. read

Property developers must ensure new buildings are broadband-ready under new EU laws

All new buildings and existing properties subject to major renovation will have to be equipped with telecoms infrastructure that will allow occupants to access superfast broadband services under new EU laws.

EU Ministers have voted to back a new directive which contains measures to reduce the cost of deploying high-speed electronic communications networks in the trading bloc. Under the plans, member states will be required to ensure that newly constructed buildings and properties subject to major renovation works "are equipped with a high-speed-ready in-building physical infrastructure, up to the network termination points".

The obligations will apply to building permits submitted after 31 December 2016. The term 'building permits' is not defined in the Directive so developers may have to wait until national rules to implement the Directive are drafted to establish what precise permits the rules refer to.

Member states will be able to exempt developers from the obligations in certain cases where the cost of compliance would be disproportionate or if the building is a monument, historic building or other special category of building, such as those used by the military.

"Given that providing for mini-ducts during the construction of a building has only a limited incremental cost while retrofitting buildings with high-speed infrastructure may represent a significant part of the cost of high-speed network deployment, all new buildings or buildings subject to major renovation should be equipped with physical infrastructure, allowing the connection of end-users with high-speed networks," a non-binding recital in the Directive said.

"In order to roll out high-speed electronic communications networks, new multi-dwelling buildings and multi-dwelling buildings subject to major renovation should be equipped with an access point, by which the provider may access the in-building infrastructure. Moreover, building developers should foresee that empty ducts are provided from every dwelling to the access point, located in or outside the multi-dwelling building," it said.

"There may be cases such as new single dwellings or categories of major renovation works in isolated areas where the prospect of high-speed connection is considered, on objective grounds, too remote to justify equipping a building with high-speed-ready in-building physical infrastructure or an access point or where so equipping the building would be disproportionate for other economic, urban heritage conservation or environmental reasons, such as for specific categories of monuments," it said.

Telecoms and property law expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said: "In my experience, major new office, retail and residential developments almost invariably include such infrastructure and, therefore, legislation giving effect to this aspect of the directive may not necessarily have significant practical implications in the UK. However, the requirement to install in-building physical infrastructure where major renovation works are carried out is likely to have greater impact. I expect a great deal of debate on what constitutes a 'major renovation' in this context."

Under the new Directive, previously voted through by the European Parliament and which needs to be transposed into national laws by 1 January 2016 so that the rules have effect from 1 July 2016, every network operator will generally be required to accept reasonable requests from telecoms operators for access to their physical infrastructure so as to install high-speed broadband networks.

The new rules lay out a number of exceptions that network operators will be able to cite to prevent such access, including on safety grounds or for reasons of network security or integrity.

"The Directive seeks to give incoming network operators a right, and host operators an obligation, to share existing telecommunications infrastructure on 'fair and reasonable terms and condition, including price'," Desai said. "Where the terms of access cannot be agreed, member states are required to provide a dispute resolution body which will make a determination within four months."

"However, the relevant provisions of the Directive are 'without prejudice to the right to property of the owner of the physical infrastructure in cases where the network operator is not the owner, and to the right to property of any other third parties, such as landowners and private property owners'. Therefore, it is possible that landowners, such as landlords of buildings upon which network operators have installed equipment, may be able to block the sharing of sites and thereby completely circumventing the objectives and effectiveness of the Directive. It will be interesting to see how the parliament transposes the Directive's provisions into UK law and, hopefully, gives them some teeth," he said.

The Directive also seeks to ensure that there is better coordination of civil engineering works with broadband deployment undertaken by telecoms companies.

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