New build developments - delivering gigabit-capable connections: consultation analysis

Response

Although telecommunications is a reserved matter under the Scotland Act 1998 the Scottish Government is committed to using devolved levers to reduce the barriers to infrastructure deployment.

New build developments represent an opportunity to ensure that the best available technology is installed during the development stage and taking steps to facilitate a retrospective gigabit-capable connection. There was a recognition from responses that while in many areas the costs to provide gigabit-capable infrastructure were reasonable there would be a small number of cases where it could exceed the cost level of £2,000 per premises proposed in the consultation. Factors off site, such as the rurality of a location, were considered to be a potential cause of exceeding the cost cap. The majority of responses considered that the proposals would ensure that gigabit-capable digital infrastructure would be placed in the best location to connect to a network distribution point while also ensuring engagement between telecoms operators and developers through the Connectivity Plan.

We considered third party land issues raised in the consultation and propose that, where third party land issues are experienced, it would be appropriate for a developer to work with an operator to identify a likely future network distribution point.

Developers working with suitable network operators – such as those with Code rights – will be able to identify a likely future location for the network distribution point such as where the development meets the public road. This will be where a development meets third party land, and it would be for the operator to take forward gaining a wayleave agreement to cross that land. Early engagement between all stakeholders is encouraged to overcome installation and land access issues

The UK Government has recently amended the Code by passing two pieces of primary legislation, the Telecommunications Infrastructure (Leasehold Property) Act (TILPA) 2021 and the Product Security and Telecommunications Infrastructure (PSTI) Act 2022. The former primarily addresses issues around unresponsive landlords in multi-dwelling units and the latter relates to retrospective rights to upgrade and share existing infrastructure. These changes intend to make it easier for alternative networks (alt-nets) to use Openreach ducts and poles as part of their deployments utilising the Physical Infrastructure Access remedy imposed by Ofcom. The Scottish Government continues to work with network operators to understand the impact of recent legislative changes on network build plans.

The Technical Handbook is technology neutral and based on network performance allowing the potential for the gigabit-capable requirement, or next-best technology requirement, to be met through wireless technologies. Evidence of this would be communicated to the building standards verifier through the Connectivity Plan.

A number of responses throughout the consultation referred to exclusivity agreements and open access infrastructure to facilitate competition in the telecoms market. Due to the reserved nature of telecommunications it would not be appropriate for the Scottish Government to implement this through changes to building standards. The UK Government and Ofcom work to promote competition at both a retail and a network level and view this as one of the ways the UK Government will meet its own targets for nationwide coverage of gigabit-capable networks. Nothing within the regulations or the updated Technical Handbook precludes developers from voluntarily taking steps to make more than one network available within their developments or deploying passive infrastructure to allow this to be done retrospectively.

A slight majority of respondents did state the need for exemptions from providing gigabit-capable physical infrastructure and there was broad agreement that these linked to distance from existing infrastructure. It was highlighted that where there was no realistic prospect of provision at a later date and the next-best connectivity was provided by a wireless or satellite solution that the passive infrastructure for a fixed line connection would be redundant.

The USO remains a useful benchmark because it exists within legislation and allows the baseline minimum connectivity to be amended without having to amend the Technical Handbook separately. The USO is currently under review as on 2 October 2023 when the Department for Science, Innovation and Technology (DSIT) published their consultation ‘Reviewing the broadband Universal Service Obligation’. The consultation closed on 27 November 2023 and responses are currently being analysed. One aspect of this consultation is the service requirements and eligibility of applicants.

The vast majority of responses agreed that there should not be a blanket exemption within conservation areas. Among those who responded, comments highlighted that each project should be considered individually based upon the impact of the build in a given area. Operators highlighted that while conservation areas can be more challenging there are methods of deployment that can minimise the impact. It was noted that the provision of other utilities equally have an impact. As a result we consider that a blanket exemption would be inappropriate and needlessly exclude where it may be possible to provide a connection. Careful planning on a case by case basis should take place with developers and operators minimising the impact in line with requirements from the local planning authority.

Only 15% responded that there should be further exemptions – these comments focused on self-builders and for those who would not want connectivity to have that choice. Noting that further exemptions would have a detrimental effect on the provision of connectivity going forward we do not propose to add any blanket exemptions to those proposed in the consultation paper. The majority of respondents supported the inclusion of material change of use, or conversions, to create new dwellings being included within the scope of the proposals. Although it was proposed that these only be included where it is reasonable to do so the cost cap will have the effect of introducing the possibility of an exemption from providing a gigabit-capable connection where it is cost prohibitive. We therefore agree that there should be no further exemptions beyond those outlined in the consultation document and to include material change of use within the scope of the regulations.

A majority of respondents stated there could be difficulty in contacting two network operators and concerns centred around the availability of suitable network operators offering gigabit-capable connectivity in parts of Scotland. The proposals aim to ensure that there is early engagement between housing developers and telecoms operators and the intention is not to hold up developments where there would be an absence of suitable operators from which a developer could obtain a quote. Where a period of 30 days has passed from a developer approaching an operator for a quote if there is no response this will be treated as having met the requirement. We will work with Ofcom and the UK Government to raise awareness of which operators are in an area to assist developers in identifying a suitable operator and to assist building standards verifiers in certifying that this has been done. We propose no changes to the definition of a suitable network operator however it will be the role of a developer to consider whether an operator with rights under the Electronic Communications Code would be required in cases where there are third party land issues.

Responses were split on the suitability of the £2,000 cost cap, with slightly more respondents stating that they did not know than responding yes or no. More responses were in agreement with the criteria used to calculate the cost cap than in disagreement, although the largest number of responses came from those who did not know. We do not propose to change the cost cap criteria or amount at present. A variable cost cap was suggested based on development size and/or location however this would create complexity for both developers and verifiers. There are no plans to automatically revise the cost cap in line with inflation however we will consider amending the amount periodically as amendments to the Technical Handbooks arise.

Comments received around the inspection of the new physical infrastructure elements beyond in-building infrastructure to a network distribution point highlighted concerns around resourcing and skills for those ensuring compliance. We do expect that in the vast majority of cases that compliance will be verified on the network operator notifying developers that the required apparatus and infrastructure have been put in place for connections to their network. It would be for verifiers to agree a programme of inspections, if required, with developers.

Comments on the updated Standard 4.14 proposed making it more specific on the specifications of the passive infrastructure under ground and for a competent authority to be established to work with developers and operators in the production of Connectivity Plans. We do not intend to establish a competent authority as this would create additional costs in the certification process. Engagement between developers and operators should be sufficient to produce a site specific Connectivity Plan based on the requirements to connect to a gigabit-capable network or a potential future deployment.

There was greater support for the inclusion of the two-part model connectivity form within the Technical Handbook from those who expressed a view. One that opposed suggested a separate process for applying for an exemption and another raised concerns this could reduce the opportunities to improve the Connectivity Plan. We intend to include the two part Connectivity Plan within the Technical Handbook as the creation of a separate process for exemptions in addition to a Connectivity Plan would increase the administrative burden and delay implementation of the proposals.

We recognise that the impact assessment is based on assumed costs to illustrate the likely impacts and costs of the proposed changes. We will take into account the feedback received ahead of the final impact assessment that will be published alongside the regulations and updated guidance.