On 28 June 2012 the Law Commission launched a consultation on the electronic communications code.

The code sets out the regime that governs the rights of electronic communications operators to install and maintain infrastructure on public and private land. The consultation paper explains the current law and sets out a number of provisional proposals and options for reform.

Areas highlighted for potential reform include:  

  • The rights of operators and landowners under the code, and the position of third parties. In particular:
    • whether it should be possible to contract out of the code;
    • whether rights granted under the code should bind others with an interest in that land; and
    • whether interim rights should be granted to code operators to install equipment while issues relating to valuation etc are resolved.
  • Operators' obligations and rights under the code and related regulations, including:
    • whether site sharing should be a statutory right;
    • whether there should be a statutory right to assign to another code operator;
    • whether the code should formalise implied rights of access to maintain/remove equipment; and
    • whether the rights to require equipment to be altered/moved/removed should be extended.
  • The test applied to determine whether code rights are granted to an operator where a landowner objects - should it be a simple case of whether financial compensation is enough, or should the public benefit also be part of the test?
  • The measure of the financial award to be paid to the landowner where an operator is granted code rights. Should compulsory purchase valuation techniques be adopted? Is it right for additional payments to be due on site sharing and on equipment upgrades?
  • The appropriate forum for the resolution of disputes, and other procedural issues - this is currently the county court but there is strong support for transferring this function to the Lands Chamber and it is possible that a system similar to that under the Party Walls Act should be adopted.
  • The interaction between the Code and other statutory regimes - including:
    • whether having code powers should mean that Part II of the Landlord and Tenant Act 1954 (security of tenure for business tenants) will not apply to the lease; and
    • whether there should be criminal or other sanctions for interfering with telecoms equipment, including shutting off the power supply.

The consultation paper is available here and responses are invited by 28 October 2012.

After the consultation period expires, the Law Commission will produce a final report (without a draft Bill) of recommendations to the Department for Culture, Media and Sport in Spring 2013. It is at that point that any draft legislation will be produced.