Key points
• Responses to consultation are required by 30 April 2015
• Draft bill containing revised Code annexed to consultation paper
• Code reform will extend to the whole of the UK
• Revised test – competing rights of operators and landowners would be assessed considering the “public interest in access to a choice of high-quality electronic communications services”, but also any redevelopment plans a landowner may have
• Ideas invited to future-proof Code to allow for technology changes
• Specific areas for consultation are:
• land and property ownership: should apparatus become “part of the land”?
• consideration: how will payment for Code rights be determined?
• upgrading and sharing of apparatus: should operators be able to do so without consent?
• contracting out of the Code: should it be possible?
• land registration: should Code rights be registered?
• transitional arrangements: should the new Code apply retrospectively?
In this information age, the availability of electronic communications ranks as a key component of modern life. Yet the regulatory framework that governs the rights of operators installing electronic communications apparatus on private and public land, the Electronic Communications Code (the Code), has barely changed since its debut more than 30 years ago, when the technological landscape looked very different.
Introduced in the Telecommunications Act 1984, the Code has struggled to keep pace with a digital world, and has been described by the Department for Culture, Media and Sport (DCMS) as “complex, unclear and out of step with modern technology”. The tinkering changes made in the Communications Act 2003 did not satisfy the Code’s many critics and, despite the Law Commission’s consultation in 2012 and recommendations for a revised Code as long ago as 2013, reform has been elusive.
Pressure has mounted for the government to tackle “not spots” suffered in less urban areas, leading to an agreement announced in December 2014 for mobile operators to invest £5bn in improving coverage, on the basis that the Code would be revised to help reduce costs. In January, a poorly judged 11th-hour attempt to pin a new Code on the Infrastructure Act met with widespread opposition, but a more considered approach is now being taken. On 26 February 2015, DCMS announced a consultation on reform, annexing a new draft Code.
The revised draft Code
The proposed Code amplifies rights to “maintain, adjust, alter, repair, upgrade or operate” apparatus, and ostensibly appears to address the need for clarity with more structured, user-friendly headings and straightforward introductory statements. There nevertheless remain uncertainties, with parts still reading like a patchwork quilt of ideas thrown together – a familiar criticism of the current Code.
DCMS has incorporated most of the Law Commission’s recommendations in some form. However, a key exception is that the county court would retain the jurisdiction for disputes, rather than the Lands Chamber of the Upper Tribunal. If this is to remain a missed opportunity, clarification will be needed as to how the Civil Procedure Rules should apply to Code disputes, as experience has shown that most county courts are simply unfamiliar with the issues raised.
Who benefits?
The proposals for calculating consideration based on market value are likely to polarise the views of those representing landowners and operators – it is notable that landowner organisations were extremely quick to challenge January’s similar proposals. The desire to avoid a ransom position is laudable and ultimately favours consumers, while landowners may find comfort in a focus on the value of the site to the operator, particularly in the case of agricultural land. However, this might be undermined by the Code allowing for the secretary of state to reverse the position.
Another change favouring consumers is the proposal to allow operators to share and upgrade apparatus without consent. Operators seeking upgrades currently struggle with landowners adopting ransom positions for even minor or invisible changes to apparatus, so this development should assist the operators’ mandate to improve coverage. To landowners’ relief, these proposed rights would be limited to, for example, where the change has no more than a “minimal adverse impact” on the apparatus’ appearance or does not create an additional burden.
Removal of apparatus would remain hotly contested and, as drafted, the proposed Code would make it harder for operators to resist if, for example, a landowner wished to redevelop. This seems fair, while the proposed 18-month notice period a landowner must give would allay operators’ concerns about network security and should give sufficient time for relocation without indefinitely obstructing redevelopment. Meanwhile, the removal of double protection provided by both Code rights and the Landlord and Tenant Act 1954 security of tenure provisions would no doubt be welcomed by landowners and practitioners.
Better late than never
There is no doubt that the existing Code leads to absurdities and an inevitable unnecessary increase in stakeholders’ legal costs, as they struggle to navigate it or, more likely, strive to avoid testing its drafting altogether. As a result, reform is to be welcomed.
The consultation will close during purdah so it remains to be seen whether a new Parliament can maintain momentum and succeed in bringing this long-awaited reform to fruition. Whatever the results of the consultation, it is hoped that the final draft of any replacement Code escapes the criticism presently levelled at the existing text,
and provides a clear, balanced and
future-proof platform for the ever-changing electronic communications industry.
The consultation is available here.
Alicia Foo is a partner and Nicholas Vuckovic is an associate in the property dispute resolution team at Pinsent Masons LLP
