Law Commission Report on reform of the Electronic Communications Code – Key Recommendations

 

On 27 February 2013 the Law Commission published its report on reform of the Electronic Communications Code and in so doing recommended a complete re-draft. The report does not include a draft Bill but the Government is said to be committed to the implementation of a revised Code (which will not be retrospective) in light of the report.

The report indicates that the overall aim of the recommendations is to facilitate the production of a clear and readily understood document, reflecting and balancing the interest of landowners, Code Operators and the public, and providing a dispute resolution procedure that works.

Underpinning the reforms, it is suggested that the revised Code should be based on the regulation of consensual relationships for which a market price is payable, but with the ability for Code Operators to apply to have Code Rights imposed on landowners where it is appropriate to do so and agreement cannot be reached.

The report runs to over 200 pages but the following recommendations are at least worth noting:

  • Where Code Rights are conferred otherwise than in a lease, they should still bind successors in title to the Site Provider, as if they were property rights and should constitute overriding interests so that they are enforceable against purchasers of registered land despite not being registered (this will require an amendment to the Land Registration Act 2002).
  • A Code Operator shall be entitled to assign all the benefit of the agreement, or the lease as the case may be.
  • Code Operators will have a circumscribed right to upgrade and share equipment.
  • The “Access Principle” from the 2003 Code should be abolished and a new test introduced that balances the public interest with that of the landowner and takes into account the need for choice and quality in the provision of electronic communication services.
  • The measure of consideration payable under the revised Code to those against whom an Order has been made, should be the market value of those rights.
  • Landowners should not have a general right to have apparatus moved or otherwise altered.
  • A lease granted primarily for the purpose of conferring Code Rights upon a Code Operator should not fall within the scope of Part 2 of the Landlord & Tenant Act 1954.
  • Code Rights should continue despite their contractual expiry while giving landowners the right to have equipment removed when they plan to re-develop or where the Code Operator is in breach of its obligations. Termination provisions will include the service of notice, and counter notice- akin to the 1954 Act procedure but requiring 18 months’ notice to end Code Rights (and not before the lease, or agreement, can be brought to an end).
  • The Code should continue to prescribe special regimes but there will be change to some of those regimes including the introduction of a market value definition for the price payable for crossing tidal waters and lands which are subject to a Crown interest.
  • Finally, it is recommended that the forum for almost all Code disputes should be the Lands Chamber of the Upper Tribunal. Code Operators will also be able to apply to get early interim access to sites where all terms are agreed other than price.