Now almost 30 years old, the Electronic Communications Code (the 'Code'), falls far short of representing the needs of a swiftly developing communications network.
Although the Code is designed to give certain network operators the right to install and maintain telecoms apparatus on public and private land, news stories such as this clearly demonstrate that it does little to prevent landowners from holding network operators to ransom in order to gain access to such land, particularly during difficult periods when operators are faced with an angry public who have come to expect a certain level of service coverage.
The Government has committed £680 million of investment in broadband, and intend to ensure that the UK has the best superfast broadband network in Europe by 2015. In order to achieve this, the existing infrastructure needs to be modernised accordingly. The Law Commission launched a consultation on its proposals for reform of the Code, which closed on 28 October 2012. The full report is due to be published in Spring 2013, with legislative changes being brought in by 2015.
Property owners and occupiers should be aware of the proposals being put forward, since the rights of landowners may change. The Law Commission's key proposals include:
- a new general right in favour of upgrades to apparatus;
- a new general right to share apparatus with others and to assign Code rights to other Code operators;
- retention of the procedure for landowners to require the alteration, relocation or removal of equipment subject to the landowner paying the network operator's costs. The Law Commission also recommends that it should no longer be possible to contract out of this paragraph; and
- a new right to contract out of the security provisions contained in paragraph 21 of the Code. This would provide landowners with more certainty when seeking to redevelop their property.
Clearly, if some of the above proposals go through, landowners will lose a degree of the control that they currently enjoy over equipment placed on their land, together with their ability to generate income from granting such rights over it. However, given the importance of the telecommunications sector to UK economic growth, it is unlikely that the Government will curb measures designed to improve a network operator's ability to deliver a modernised communications network.