A  more detailed analysis of the Accord on digital connectivity

On 18 February, details were published of an accord (“the Accord”), signed by the Church of England’s NCIs, DCMS and Defra, which encourages the Church of England to use its buildings and other property to improve broadband, mobile and Wi-Fi connectivity for local communities. The main features of the Accord are summarized below and the implications considered. 

The Accord

The government Press Release provides an overview of the initiative and  a link to the document, Church of England and HM Government, Joint Accord on Use of Church land and buildings to support digital connectivity, 18 February 2018 (a.k.a. “the Accord”). The Notes to Editors include links to detailed guidance on the installation of telecoms equipment in churches by from the Church of England and Historic England. The DCMS Guidance, Broadband Delivery UK, was updated earlier in the month.

The objective of the Accord is:

“to set out our common understanding of the benefits which may result from improved digital connectivity, and the aspirations of the NCIs and HMG in relation to the use of Church land and buildings (“Church property”) to support digital connectivity, in particular through the hosting of infrastructure to provide broadband, mobile and Wi-Fi connectivity to areas where this is currently sub-optimal”.

It also identifies a number of actions the NCIs and HMG propose to take “in the interests of promoting improved digital connectivity”: However, in terms of its legal implications, the document states:

“[t]his Accord recognises that the NCIs cannot and do not seek to speak on behalf of the autonomous legal entities and office holders at a parish, diocesan and national level. This Accord is not a legally binding document and does not create obligations which can be enforced against HMG or NCIs or any other Church entity. Each Church entity must take its own decision regarding the use of property for which it has responsibility. This Accord seeks to encourage Church entities to consider and promote the benefits which may result from hosting digital infrastructure and sets out the steps which HMG and the NCIs intend to take” [Emphasis added].

These steps are essentially aspirational statements and are listed at the end of this post. Of more immediate  practical value to PCCs &c will be the Church of England and Historic England guidance on the installation of telecoms equipment in churches, included in the Notes to Editors in the DCMS Press Release.

Comment

The consistory courts are an essential component of any strategy of improved digital connectivity in England which employs churches and church buildings. In most cases, without the appropriate faculty it is not permissible for any of the hardware necessary to achieve this objective to be installed. Furthermore, a petition is seldom granted unless all other elements of the project, such as other permissions &c, are in place.  However, the “other church properties and farm buildings” identified in the government Press Release will only come within the faculty jurisdiction if they or the land on which they are built is consecrated.

Importantly, the Church of England guidance (in ChurchCare) highlights the differences between mobile and broadband infrastructure:

“[5]. The main distinction between mobile and broadband infrastructure comes from the approach to the church. Mobile phone operators actively look for churches as strategic sites to improve their existing coverage so may approach a PCC, usually through an agent, with an offer of funds for siting their equipment on a church tower.

Broadband installations can be more proactively pursued by the PCC where improved connectivity is sought by the church itself or where the church approaches or is approached by a company or community group wishing to enable better local community access.

[6]. Congregations planning to install closed systems for their own use within the building will find the guidance useful in terms of gaining permission to achieve their aims but their operating system will be managed on the same basis as a private system accessible only to those permitted to use a particular password”.

The 13-page Guidance document provides information relating each stage of the process, from receiving an approach from a mobile phone operator or internet service provider, to seeking faculty approval:

•  obtaining specialist advice, consultations with various agencies and the public;
• investigating the various permissions that might be required;
• obtaining professional advice – architects, surveyors, solicitors and other specialists;
• contacting national bodies with a statutory interest in the church’s built heritage: Cathedral and Church Buildings Division; National Amenity Societies: Ancient Monuments Society, the Council for British Archaeology, the Georgian Group, the Society for the Protection of Ancient Buildings, the Twentieth Century Society and the Victorian Society, Historic England (see below).
• Issues to consider: equipment to be used; ingoing works; impact on the fabric of the church; health and safety compliant access for telecommunications operators  & ors; health and safety; lightening protection; new ‘clean’ electrical supply; insurance; bell and turret clocks; wildlife and trees; archeology.
• Licence issues: The parish will need independent advice as to the Licence Agreement. The Diocesan Registrar will usually have a copy of a Model Licence.
• Formal application for faculty authorization.

Covering similar issues, the Historic England guidance is equally important since HE is the statutory adviser to local authorities and the listed five denominations in accordance with the Town & Country Planning Act 1990 and the Ecclesiastical Exemption Order 2010. If the installation will make changes to historic fabric that could affect the character or significance of a listed building HE must be consulted, whether the church is seeking permission through its denominational advisory body or the local authority.

At L&RUK, we have reviewed the legal issues addressed by the consistory courts, in relation to the installation of telecommunication equipment, in our posts Wi-Fi in churches – health effects, courts’ jurisdiction and locus standi and Wi-Fi in churches – evidence, system security and commercial considerations. In addition, our annual indexes of consistory court judgments summarize relevant cases for 2017, 2016, and 2015. To date there have been no judgments reported in this area for the present year.

Actions identified in the Accord

“In the interests of promoting improved digital connectivity: The NCIs and HMG propose to take the following steps:

• HMG will take action to support improved connectivity across the UK, including in rural areas, and will continue to work with mobile and broadband operators to encourage investment that will deliver connectivity improvements. HMG will offer support, where appropriate, to help resolve barriers to delivering this ambition, and will help facilitate discussion between all parties.
• HMG will seek to provide advice and resource, as appropriate, to the NCIs to support the NCIs’ efforts to enable individual dioceses, parishes and other landowners to consider supporting digital connectivity.
• HMG will do its best to provide coaching support for parishes and dioceses to help them develop the necessary skills needed to develop and progress digital infrastructure projects.
• HMG will encourage mobile and broadband operators to work proactively and pragmatically with owners of Church property to achieve the aims set out in this Accord, recognising that telecommunications infrastructure has siting and design requirements, and that the parties will need to put in place a suitable and commercially robust agreement.
• The NCIs will encourage where possible the development of guidance for dioceses, parishes and Chancellors which has in view a consistent approach to the use of Church property to enable digital connectivity.
• The NCIs will co-operate with mobile and broadband operators, to seek to establish a standard framework contract that could be put in place for church entities to use in contracting for connectivity in areas with no conventional wired broadband provision.
• Development of this framework contract will be at the operators’ cost and in full knowledge that individual agreements will have to be negotiated with parishes or other landowners, and that these are not required to use such a framework contract.
• The NCIs will include digital connectivity within the remit of the Media Bishops Group. The Media Bishops Group will act as a conduit between the NCIs and dioceses in relation to any policy questions which arise.”