Gov Finalise Rules Mandating Gigabit Broadband for New Build Homes

The UK Government has issued their response to last year’s technical consultation on changes to the existing ‘Building Regulations 2010‘, which sets out their final position on the legal framework for making it mandatory for property developers to ensure that new build homes are constructed with support for faster broadband.

As it stands today around 96% of new build homes are already being built with support for Fibre-to-the-Premises (FTTP) lines (here), which is up sharply from a little over 60% back in 2017 (here). By comparison, around 70% of all premises across the UK can today access a gigabit-capable broadband network – this tends to reflect coverage via both Full Fibre and Hybrid Fibre Coax (HFC / Cable) lines.

Network operators, such as Virgin Media (VMO2), Gigaclear, Openreach (BT), Hyperoptic, OFNL and more, have already made it cheaper and easier for developers to deploy FTTP. The Government have, until now, also been taking a soft approach by encouraging councils to ensure that they factor at least “superfast broadband” (30Mbps+) into local planning approvals for new build sites.

Despite this, some property developers still claim that deploying such broadband services can be prohibitively expensive, particularly in remote rural areas, due to the lack of any gigabit-capable networks nearby. Not that this has prevented many of those same companies from raking in the profits.

At the same time the government are doing whatever they can to support their £5bn Project Gigabit broadband rollout scheme, which aims to help make gigabit-capable broadband ISP lines available to at least 85% of UK premises by the end of 2025 and then “nationwide” coverage (c.99%) by around 2030 (here). The new rules for property developers and network operators are thus considered necessary to complement this focus.

The Finalised Legal Framework

At the end of last year the government launched a technical consultation, which outlined their proposals for creating a legal framework to enact their new dwelling connectivity policy – this involves amending the Building Regulations 2010. The final response to this has now been issued, although we should point out that the changes will only apply to England as building regs are a devolved matter (but they are encouraging similar measures for Scotland, Wales and N.Ireland).

The big catch with all this is the stated focus on “gigabit” capable connections, which is repeatedly mentioned throughout the initial text. However, when you dig into the details, the actual policy is technically somewhat less prescriptive and mandates “at least a superfast broadband connection” (30Mbps+), before adding, “failing that, at least a Universal Service Obligation-standard” connection (10Mbps+).

At this point, it’s hard to see the new policy having much of an impact, particularly since the private sector is already doing a pretty good job on this front. Nevertheless, the final requirements have been summarised below.

Summary of changes (Requirements)

Having carefully considered the responses to the technical consultation, the government has decided to take forward the following changes to the Building Regulations 2010. We will introduce legislative requirements for developers to install the following for new dwellings:

1. Gigabit-ready physical infrastructure necessary for gigabit-capable connections (consisting of physical infrastructure including ducts, chambers and termination points) up to a network distribution point, or as close as is reasonably practicable where the developer does not have the right to access land up to the distribution point; and

2. Subject to a £2,000 cost cap per dwelling (includes VAT), a gigabit-capable connection (which may include equipment such as an optical fibre cable or other technological means of facilitating such a connection). Where a developer is unable to secure a gigabit-capable connection within the cost cap, developers must install the next fastest technology connection available, provided this can be done without that connection also exceeding the cost cap.

In the first instance this should be at least a superfast broadband connection and failing that, at least a Universal Service Obligation-standard public electronic communications network connection, as defined in Schedule 1 of the Broadband Universal Service Obligation (a USO-standard connection).

Where the developer has no right over intervening land in which it would need to install gigabit-ready physical infrastructure to reach the network distribution point, no gigabit-capable connection, they are still required to install gigabit-ready physical infrastructure to one of the following points in order of priority:

(i) as close as reasonably practicable to a location at which it is likely that a distribution point is to be installed within the relevant 2-year period (a ‘likely future location’).

(ii) where there is no likely future location that is closer to the building than the closest distribution point already installed, an access point for gigabit-capable public electronic communications networks.

The relevant 2-year period is a period of 2 years beginning with the earlier of (a) the day on which a building notice, initial notice or public body’s notice is given or (b) the day on which full plans are deposited.

Where the developer is proposing to install infrastructure to such a point because it is unable to install it all of the way to a distribution point elsewhere due to access issues, the developer will need to demonstrate the steps taken to establish the location of the distribution point (by liaising with a network operator).

This means that the first requirement to install the physical infrastructure necessary for gigabit-capable connections (to which the cost cap does not apply), will still apply in almost all circumstances to ensure that the dwelling is future-proofed and ready for gigabit connectivity.

The requirements are to apply to new dwellings in England; that is, the construction of a self-contained building or part of a building to be used as a new residential dwelling. This includes residential dwelling aspects of a mixed-use building (including live/work units, e.g. a flat (dwelling) that is a workplace for people who live there, its occupants, and for people who do not live on premises) and self-built dwellings. New dwellings developed within conservation areas are to be in scope of the requirements, noting that local planning conditions should be met.

They will be applicable to each dwelling or building containing one or more dwellings for which a full plan, building notice, initial notice or public body’s notice has been submitted for building control purposes. Building control may be carried out by building control bodies, either local authorities or by independent Approved Inspectors (AIs). This submission will include compliance evidence submitted by developers. To assist with this, a model form ‘connectivity plan’ is to be set out in an Appendix to Volume 1 of Approved Document R.

The requirements for gigabit-ready physical infrastructure and a gigabit-capable connection will not apply: to new dwellings created by a material change of use (conversion); to the erection of a new building other than a dwelling; or when an existing building (including an existing dwelling) is subject to major renovation works.

Other building works exempted from existing Building Regulations 2010 requirements, for example, buildings to be occupied by the Ministry of Defence or the armed forces of the Crown, or to be otherwise occupied for purposes connected to national security, are excluded from the scope of the requirements.

The consultation doesn’t really cover it, but the government has also previously worked with broadband ISPs and network operators to secure “significant new commitments” (i.e. they will contribute to the costs of installing gigabit broadband in new-build homes). As we recall from the end of 2021, the following commitments have already been made.

Network Operator Cost Commitments

— Virgin Media will contribute at least £500 and, in the case of some larger sites, £1,000.

— Openreach has committed to a combined contribution with developers of £3,400 (same as the broadband USO level), with a maximum developer contribution of £2,000.

— Gigaclear will offer to provide connectivity to such new build properties at a contribution of up to £1000 per property.

— VXFIBRE / LilaConnect has separately said they can contribute £500 and up to £2,000, depending on the specific situation.

It should go without saying that the language of this policy means that some developments will slip through the cracks. For example, we suspect that some self-built homes will probably escape, as the cost of connecting them to gigabit lines in remote rural areas would simply not be viable until better underlying infrastructure becomes available (falling back to 10Mbps+ will resolve this for most such situations).

Finally, we note that some respondents – mostly property developers – did raise concerns with the costs, burdens and impact of installing two sets of physical infrastructure to support a gigabit-capable connection and another form of next best technology connection.

The Government’s analysis indicated that approximately 1.7% of premises in new build developments with between 1-19 units have deployment costs above the £2,950 threshold, being the total of the developer cost cap and the assumed operator contribution. Within this 1.7%, as noted by respondents, the next fastest technology connections may be able to be provided using infrastructure also capable of fulfilling the gigabit-ready physical infrastructure requirements.

Additionally, where no connection can be secured within the cost cap, the government said it is possible that the “isolated area” exemption may also be engaged, thus removing the requirement for gigabit-ready physical infrastructure altogether. The changes for all this will now need to be made by way of secondary legislation, which the government said would occur “as soon as Parliamentary time allows“.

The irony of all this, as touched on earlier, is that the government have taken so long to reach this point with their framework proposal that the problem they were seeking to fix is no longer a significant issue. On the other hand, the very knowledge that this legislation was coming may have helped encourage developers to adapt ahead of time.