Under recommendations made by the Law Commission today for the complete redrafting of the Electronic Communications Code, operators would be allowed to apply for the right to start work on cabling or erecting masts on land even if the landowner had not yet given full permission.
Under the proposals permission would only be granted in cases where agreement had been reached in principle but a price had not been agreed. Landowners would retain the right to remove equipment if no deal was reached, the report said.
"Such rights can only be granted if the landowner is properly protected by the right to remove the equipment in the event that terms are not subsequently agreed or ordered, and only in cases where it is likely that the Code Operator would be successful in obtaining access at a final hearing," the report said. "The possibility of interim access should help reduce delay in cases where the only issue in dispute is the price; and price, in turn, should be more readily resolved under the clearer definition of market value that the revised Code would provide."
The Law Commission has previously consulted on revisions to the Code and said that the whole Code should be redrafted because it was complex and no longer reflected modern communications industry needs.
"The current Code is complex and confusing, it is inconsistent with other legislation, and it is not up-to-date with modern technology," it said. "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."
Property law expert Nicholas Vuckovic of Pinsent Masons, the law firm behind Out-Law.com, said that on balance the planned revisions to the Code slightly favour landowners more than operators, but that there are elements in the revisions that operators should welcome.
"The changes are more likely to benefit landowners than operators," he said. "However, operators should consider this in light of the benefit of expanded rights, and some much-needed clarification. In any event, operators should console themselves with the knowledge that any significant expansion in their rights vis-à-vis their landowners’ would have led to an increase in premiums for those rights."
The Law Commission said that the consideration paid to landowners should be clarified, and that they should be paid 'market price', a term that it said is understood by valuers. The basis for calculating consideration in the existing Code is not well known or understood by valuers which is a cause of confusion, it said.
Telecoms property expert Alicia Foo of Pinsent Masons, the law firm behind Out-Law.com, said: "This gives useful clarity to a murky area of the Code, but will disappoint those operators who had pressed hard for the Law Commission's original proposal of compulsory purchase principles to avoid ransom situations arising."
Operators are likely to welcome the greater rights that a revised Code would give to operators to share and upgrade their equipment.
Landowners are given enhanced rights to remove equipment and terminate operators' rights under the Code with the removal of double-protection for those operators who have leases with security of tenure under the Landlord and Tenant Act 1954.
Some elements of the 1954 Act will be 'borrowed' to provide for security of tenure and to deal with the expiry of rights under the Code and the removal of equipment.
"Operators should keep their wits about them, though, as it would no longer be the case that they can simply remain in occupation until receiving a court order to vacate, and the inadvertent removal of their equipment would become a worrying prospect," said Vuckovic.
Foo welcomed the recommendation that disputes be moved from the County Court to the Lands Chamber of the Upper Tribunal because this could increase the speed at which cases are heard.
"This is a good idea as long as specialists are employed and that the Tribunal is given the resources it needs to do the job properly," she said.