Connectivity: importance of sustainable digital infrastructure

Enabling a superfast future

27 October 2016

Claire Haynes and Helen Garthwaite highlight the importance of sustainable digital infrastructure for broadband connectivity

Superfast broadband connectivity is now regarded as essential by businesses and the majority of homeowners. The government’s ambitions for digital connectivity are also high, with a target for 95% of the UK to have access to superfast broadband from 2017.

The Building (Amendment) Regulations 2016 implement the Broadband Cost Reduction Directive 2014/61/EU as law in England and Wales. The primary purpose of the legislation is to contribute to reducing the costs and obstacles to deploying superfast broadband. The regulations offer an established route to set requirements for buildings, with an enforcement mechanism already in place.

The 2016 regulations introduce a new Part R of Schedule 1 to the Building Regulations 2010, which contains a new requirement that all new or existing buildings that are subject to major renovation works are adequately equipped with the necessary infrastructure to support superfast broadband of at least 30Mbps.

The government has also issued Approved Document R: Physical infrastructure for high-speed electronic communications networks, which gives practical guidance on compliance with the technical parts of the new requirement. Although compliance with the regulations is not guaranteed by following the guidance, there will be a presumption of compliance. This also brings a degree of flexibility as there is no obligation to adopt any particular solution from an approved document, so other ways of complying can be discussed with the relevant building control body.

The Building Regulations take effect on 1 January 2017 in England, and for a limited number of energy-generating sites in Wales; however, they will not apply to works that are subject to existing building control notices and applications submitted before this date.

A building will meet the regulatory requirements if it is designed and constructed in such a way that it is ready to receive superfast broadband in the future, but it does not need to be installed immediately after completion of the works.

Major renovations

The new regulations apply not only to new-builds but also major renovation works to a building. These works are defined as encompassing structural modifications of the entire internal physical infrastructure or a ‘significant part’ of it, comprising installations such as ducting that host the wired or wireless access networks through which broadband services are delivered.

The regulations and guidance give no explanation of what is meant by renovation of a ‘significant part’ of internal infrastructure, however. This will lead to uncertainty as to whether some refurbishment projects are covered by the new requirements. The installation of new ducting throughout an entire building will mean that the new regulations are applicable, but suppose an anchor tenant requires new ducting in their premises – will they apply in this case? Given the lack of guidance, it will be a question of fact and degree in the individual circumstances of each case.

Access points

The regulations provide that in-building infrastructure is to be installed up to a ‘network termination point’, the physical spot at which an occupier is provided with access to broadband. For multi-occupancy buildings, there will typically be multiple network termination points, with 1 in the premises of each occupier.

Where works are carried out to such a building, that building must also be equipped with a ‘common access point’ for broadband connectivity. This is a physical point inside or outside the building that is accessible to broadband providers, where they can connect to internal infrastructure. Single-occupancy buildings will also be required to have an access point, but there will only be 1 network termination point connected to it.

The new requirement is only to provide in-building infrastructure between the access point and the occupier’s network termination point. Site-wide broadband infrastructure extending externally from the access point is outside the scope of the new regulations, as is cabling or in-building infrastructure beyond the network termination point.

Although the regulations will enable improved connectivity, they missed an opportunity to go further and cover the requirements for site-wide infrastructure – an important consideration given both the increasingly connected world in which we live, where more public spaces and areas between buildings are connected, and the drive towards ‘smart cities’.

Exemptions

The regulations will apply to dwellings and non-residential property. However, there are exemptions for certain types of building and building work. These include:

  • conservatories and other small detached buildings that contain no sleeping accommodation
  • buildings that are listed or in a conservation area, for which compliance would unacceptably alter their character or appearance
  • buildings in isolated areas where the prospect of a high-speed connection is considered too remote to justify equipping the building
  • major renovation works where the cost of compliance would be disproportionate to the benefit gained.

A person wishing to take advantage of the latter exemption would need to demonstrate to building control that the cost of compliance would be unreasonable, taking into account the work required and the alternative means of high-speed broadband delivery available. There is no guidance, though, on what would constitute an unreasonable level of expense.

Incentives for stakeholders

The guidance states that suitable ducting should be provided to connect all network termination points to an appropriate access point, for example wall ducts or, for multi-occupancy buildings, dedicated vertical and horizontal riser service routes. Implementation of the new regulations will not be without challenges or costs, particularly for older buildings that were not designed with space for broadband infrastructure and ducting.


The regulations offer an established route to set requirements for buildings

The new regulations will encourage developers, investors and occupiers to consider IT infrastructure early when moving premises or in their development project, because non-compliance could significantly affect a building’s value, marketability and use. For some developers and investors, the cost effect of the regulations may be minimal as many new buildings are now designed to be fibre-ready with ducting for broadband access and termination points already integrated into the design; for others, the changes will be a wake-up call.

The new regulations are another step in the right direction for the legal framework to keep pace with the practical realities of technology. A new Electronic Communications Code is promised as part of the Digital Economy Bill, underpinning agreements to install and maintain communications apparatus on land and property. A project led by the City of London Corporation, with the backing of former Culture and the Digital Economy Minister Ed Vaizey, has also developed a standardised wayleave. Together with the new regulations, these initiatives should help to improve connectivity and reduce the costs and delays of the current protracted wayleave and street works processes.

While green buildings have firmly established their place in the market, we have recently seen a change in focus towards the ‘wellness’ of buildings, and we predict that connected buildings will follow in their footsteps.

Claire Haynes is Professional Support Lawyer in the Commercial Property team and Helen Garthwaite is Partner in the Construction team at Wedlake Bell

Further information

Download a complete “Connectivity: importance of sustainable digital infrastructure” PDF