Digital infrastructure projects (fibre rollouts, data centre builds, tower deployments) need commercial and regulatory structuring from day one. A necessary precondition is obtaining Code Powers from Ofcom. Without Code Powers, the developer cannot exercise rights under the Electronic Communications Code to install and maintain apparatus on land. Ofcom must decide a completed application within six months, under regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011, read with section 107(1A) of the Communications Act 2003. The controllable variable is the date the application becomes complete. Once Code Powers are held, a code operator must ensure that sufficient funds are available to meet the street works liabilities specified in regulation 16 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003, and must certify that to Ofcom two weeks before it first exercises Code rights to install apparatus, then on 1 April each year. We advise on Code Powers applications, project structuring, funding documentation, landowner negotiations, planning strategy and the operational framework needed to go live. Industry experience matters because the issues are interconnected: the timeline for obtaining Code Powers determines when you can negotiate land access, which determines the construction schedule, which determines when you need systems in place for Ofcom compliance, which determines your go-live date and revenue model. Each of those dependencies has to be committed before the one that follows it.

Why regulatory compliance is front-loaded

Most regulatory work must be completed before construction begins. Code Powers must first be obtained from Ofcom through a formal application under section 106 Communications Act 2003. Ofcom must decide a completed application within six months, under regulation 3(2) of the Electronic Communications and Wireless Telegraphy Regulations 2011 and section 107(1A) of the Communications Act 2003. Separately, a code operator must ensure that sufficient funds are available to meet the liabilities specified in regulation 16(10) of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003, which are street works liabilities owed to highway and other street authorities, together with the cost of making good damage caused by installing or removing apparatus and of removing redundant apparatus from a street. An insurance policy, bond, guarantee or other instrument will satisfy that duty, and the certificate goes to Ofcom two weeks before Code rights are first exercised to install apparatus. Only once Code Powers have been granted can the developer exercise rights under Schedule 3A to install and maintain apparatus on land, either by agreement with the landowner or, if agreement cannot be reached, through an application under paragraph 20 of Schedule 3A to the county court, the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber). Since 6 April 2024, when regulation 4(1)(a) of the Electronic Communications Code (Jurisdiction) Regulations 2017 was omitted by SI 2023/1220, proceedings in England and Wales may be commenced in either tribunal. The operator must first give a paragraph 20(2) notice and wait 28 days, and must consider alternative dispute resolution before applying where it is reasonably practicable to do so.

A code operator does not need full planning permission for most apparatus. Part 16, Class A of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 permits an electronic communications code operator to install, alter or replace apparatus within the height and siting limits in paragraph A.1, subject for some categories to a prior approval application to the local planning authority on siting and appearance under paragraph A.3. Prior approval does not apply at all to a telegraph pole, cabinet or line for fixed-line broadband on article 2(3) land. Where a full application is needed, article 34(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 gives the authority 8 weeks to determine a non-major application and 13 weeks for major development. Planning conditions can restrict antenna deployment, require screening or impose post-construction monitoring.

Under section 46(2) of the Communications Act 2003 a general condition may be applied to every person providing an electronic communications network or service, or to every person providing one of a specified description, so the network-facing conditions bind the provider before any customer is connected. Condition A3.2 requires all necessary measures to ensure uninterrupted access to emergency organisations, and A3.5 requires accurate caller location information. The General Conditions cover a range of obligations including contract requirements (GC C1), billing and metering (GC C3), number portability (GC B3), access to emergency services (GC A3) and complaints handling (GC C4). Compliance typically requires systems investment (billing, service management, emergency call routing) that must be budgeted and delivered before go-live.

HM Treasury may designate a person who provides services to authorised persons, relevant service providers or FMI entities as a critical third party, under section 312L of the Financial Services and Markets Act 2000 as inserted by section 18(3) of the Financial Services and Markets Act 2023. The Treasury made the first designations in the Critical Third Parties (Designation) Regulations 2026, in force 13 July 2026, naming four cloud providers: Amazon Web Services EMEA SARL, Google Cloud EMEA Limited, Microsoft Ireland Operations Limited and Oracle Corporation UK Limited. No data centre operator is designated. A designated person must comply with rules made by the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England under section 312M, and may be directed under section 312N.

Common fibre rollout failures

Timeline failures occur because developers do not factor regulatory approval timelines into the project schedule. A fibre developer may plan 12 months from start to first customer. That does not account for the Ofcom Code Powers application, on which Ofcom has up to six months from a completed application, followed by landowner negotiations or paragraph 20 proceedings to exercise those Code Powers, and prior approval or planning consent. If any stage is contested, the entire timeline slips.

Cost failures occur because General Conditions compliance requires investment in billing systems, service management and emergency call routing. Billing systems in particular attract a cost that first-time entrants rarely carry in the model, because Condition C3.5 requires a regulated provider to obtain approval of its total metering and billing system from an approval body.

Security duties fall on the operator, not on the infrastructure, and nothing is classified. The provider of a public electronic communications network or service must take appropriate and proportionate measures to identify, reduce and prepare for security compromises under section 105A of the Communications Act 2003, must meet the specific requirements in the Electronic Communications (Security Measures) Regulations 2022, and must inform Ofcom under section 105K of any security compromise that has a significant effect on the operation of the network or service. Ofcom, not DSIT, must seek to ensure compliance with those duties under section 105M, and holds the assessment and enforcement powers that follow it. There is no certification of compliance. The tiering in the DSIT Telecommunications Security Code of Practice follows the relevant turnover of the provider, so the tier is known from the accounts and the operational model can be designed around it before build.

Common issue	Better approach
Code Powers application timeline not built into the project plan	Statutory six month Ofcom determination period built into the project plan, dated from a completed application
Landowner negotiations started too late	Three to six month negotiation window factored into critical path
Planning consent treated as routine	Eight to thirteen week determination period with permitted development assessment
General Conditions compliance costs not built into the budget	Investment in billing, service management and emergency routing budgeted from inception
Section 105A security duties treated as a post-build question	Appropriate and proportionate measures and supplier controls designed in before build

Structuring a digital infrastructure project

A well-structured digital infrastructure project integrates commercial and regulatory planning from day one. Bratby Law advises on the commercial structure before heads of terms are finalised: landowner negotiations and Code Powers strategy, planning approach, funding documentation, operational readiness and go-live planning.

We bring industry context from advising operators, developers and funders across UK digital infrastructure. We understand how the regulatory requirements interact with the commercial timeline, so we can advise on sequencing and identify where regulatory approvals sit on the critical path.

How Bratby Law helps

• Code Powers applications: advising on the application to Ofcom for Code Powers under section 106 Communications Act 2003, including preparation of the application, structuring the bond or guarantee, structuring the regulation 16 funds for liabilities and the certificate to Ofcom, and managing the six month statutory determination period; once Code Powers are granted, advising on exercising Code rights under Schedule 3A including voluntary agreements with landowners, the paragraph 20 notice and alternative dispute resolution steps, paragraph 20 applications to the county court, the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber), and interim Code rights under paragraph 26 where the project timeline requires early access
• Planning strategy: advising on the planning application approach under the Town and Country Planning Act 1990, including permitted development rights for telecoms apparatus, pre-application engagement with planning authorities, and managing planning conditions that could restrict deployment
• Project structuring and funding documentation: advising on the commercial structure of infrastructure projects, drafting and negotiating build contracts, IRU agreements, capacity purchase arrangements and funding documentation for debt and equity investors
• General Conditions compliance programme: identifying which Ofcom General Conditions apply to the project, specifying the systems and operational procedures required for compliance, and setting out the timeline and budget for implementation before go-live
• TSA 2021 compliance: advising on the security duties and supply chain requirements under the Telecommunications (Security) Act 2021, including the section 105A and 105K duties, the requirements in the Electronic Communications (Security Measures) Regulations 2022, which Code of Practice tier the turnover thresholds put the provider in, and the implications for supplier management
• Landowner negotiations and wayleave agreements: negotiating wayleave terms, access agreements and site licences with landowners, managing the interface between voluntary agreements and statutory Code Powers, and advising on the consideration payable under the revised Code valuation framework
• Regulatory risk assessment for funders: providing infrastructure investors and lenders with a regulatory risk assessment covering Code Powers, planning, General Conditions and security obligations, integrated into the project financial model

Rob Bratby advises infrastructure developers, operators and funders on the commercial and regulatory structuring of digital infrastructure projects, bringing experience from a one-year secondment to Oftel and from General Counsel roles at telecoms operators. Rob is ranked in Chambers UK (Band 2) for telecoms and recognised as a Legal 500 Leading Partner.

Frequently asked questions

What is the typical timeline for a fibre rollout from planning to go-live?

Eighteen to twenty-four months is realistic for a well-planned rollout. The critical path typically runs: Ofcom Code Powers application, which Ofcom must determine within six months of a completed application, site surveys and prior approval or planning applications, which can run in parallel, landowner agreements or paragraph 20 proceedings to exercise Code Powers, construction, systems implementation for General Conditions compliance, and go-live. Contested land access or a planning refusal will extend it. We advise on sequencing to keep the regulatory steps off the critical path.

When do the Telecommunications (Security) Act 2021 duties apply to a new network?

From the moment the network or service is provided to the public. There is no classification step, no DSIT decision to wait for and no certification of compliance. The duties in sections 105A and 105K of the Communications Act 2003 and the requirements in the Electronic Communications (Security Measures) Regulations 2022 apply to every provider of a public electronic communications network or service, and Ofcom monitors compliance under section 105M. Whether the DSIT Telecommunications Security Code of Practice guidance measures are expected of a provider follows its relevant turnover: the Code sets three tiers, at 1 billion pounds or more, at 50 million pounds or more but under 1 billion, and below 50 million for providers that are not micro-entities. Providers in the third tier are not expected to follow the Code measures. Build the section 105A measures and the supplier controls into the design, because retrofitting them after go-live costs more.

What is a General Conditions impact assessment?

An analysis of which Ofcom General Conditions apply to your infrastructure and what systems and operational procedures are required for compliance. It identifies relevant conditions, sets out requirements and estimates cost and timeline.

Can planning conditions prevent us from deploying antennas as planned?

Yes. Planning authorities can impose conditions restricting antenna deployment. Engage with planning authorities informally before submitting the application. If a condition is unacceptable, a planning variation adds 4-6 months.

What happens if Code Powers are contested after we have invested in design?

If the landowner will not agree terms, an operator may apply under paragraph 20 of Schedule 3A to the county court, the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber). The operator must first serve a paragraph 20(2) notice and wait 28 days, and must consider alternative dispute resolution before applying where that is reasonably practicable. All of this assumes Code Powers are already held: if they are not, the Ofcom application comes first. Identify land access issues early and start the Ofcom application as soon as the project is committed.

Do we need to comply with General Conditions before we go live?

Yes, and earlier than go-live. Under section 46(2) of the Communications Act 2003 a general condition may be applied to every person providing an electronic communications network or service, or to a specified description of them, so network-facing conditions such as Condition A3 bind the provider before the first customer is connected. Condition C3.5 also requires approval of the total metering and billing system from an approval body, which is a procurement lead time, not a switch to be thrown at launch.

Related transactions pages

See also our other transactions pages:

• Mergers and Acquisitions (M&A)
• Private equity
• SaaS and Cloud Services
• Subsea cables
• MVNOs and MVNEs
• Interconnection, peering and access agreements
• Network sharing and co-location agreements
• Data Commercialisation and Licensing
• NSIA Clearances

Independent directory rankings

Our specialist expertise is recognised in major independent legal directories:

• Chambers & Partners: Rob Bratby is ranked as a Band 2 lawyer in the UK Guide 2026 in the “Telecommunications” category: Chambers
• The Legal 500: Rob Bratby is listed as a Leading Partner for Telecoms in London (TMT: IT and Telecoms). The Legal 500
• Lexology: Rob Bratby is recognised in the Lexology Index as a Global Elite Thought Leader for telecoms and media, and as a Thought Leader for data privacy and protection: Lexology