28 February 2013


The UK Law Commission has released a report on the Electronic Communications Code (Law Commission Report No 336), making recommendations as the basis of a revised Electronic Communications Code.

The Commission comments that
The Code was enacted in 1984 to regulate landline telephone provision. It sets out the regime that governs the rights of designated electronic communications operators to maintain infrastructure on public and private land. In modern times, it applies to the infrastructure forming networks which support broadband, mobile internet and telephone, cable television and landlines. This project focuses on private property rights between landowners and electronic communications providers; it does not consider planning.
Often, the rights to access private land are agreed with the landowner. However, where this does not happen, the operator has the power to apply to the court for an order to dispense with the need for agreement; where the court does this, it will also make a financial award in favour of the landowner. 
 The current Code has been criticised by courts and industry  as out of date, unclear and inconsistent with other legislation. The reforms proposed by the Commission are aimed at -
  •  providing a clearer definition of the market value that landowners can charge for the use of their land, giving them greater confidence in negotiating and giving providers a better idea of what their network is likely to cost; 
  • clarifying the conditions under which a landowner can be ordered to give a designated network provider access to his or her land, bringing more certainty to both landowners and providers and helping them to reach agreements more easily; 
  • resolving the inconsistencies between the current Code and other legislation; 
  • clarifying the rights of landowners to remove network equipment from land; 
  • specifying limited rights for operators to upgrade and share their network equipment; and 
  • improving the procedure for resolving disputes under the Code.  
The Commission recommends that -
  • The revised Code should be drafted afresh; amendment of the current text will only add to its complexity and to legal difficulties. 
  • The revised Code should be technology-neutral, providing a legal framework that is as appropriate to the laying of cables as to the siting of masts. 
  • Landowners should continue to be paid a market price for the right to use land, but the revised Code should provide a definition of market value that is familiar to valuers and conforms to their professional standards. 
  • Where a network operator wants to put equipment on land against the owner’s wishes, the legal test for the compulsory siting of equipment should be clear and compatible with human rights. 
  • Operators should have limited automatic rights to share and upgrade their equipment, and should be able to assign rights to other operators. 
  • There should be clear provisions about what happens to apparatus after an agreement with a landowner has expired; rights under the Code to keep apparatus installed require protection so as to ensure the continuity of networks, but where those rights have terminated, landowners should have clear rights to remove equipment. 
  • Disputes arising under the Code should be heard within the tribunal system rather than in the County Court. It will be possible for the tribunal to grant interim access to land on terms that protect the landowner pending agreement or a final order.