(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 106 of 130
10.10 We ask consultees to tell us if there is a need for a revised code to provide that where an
occupier agrees in writing for access to his or her land to be interfered with or obstructed,
that permission should bind others with an interest in that land.
Consultation Paper, Part 3, paragraph 3.59.
We agree there is a need to bind others with an interest in that land for the same reasons as
mentioned at 10.8.
10.11 We ask consultees to tell us their views about the use of the right for a Code Operator to
install lines at a height of three metres or more above land without separate authorisation,
and of any problems that this has caused.
Consultation Paper, Part 3, paragraph 3.67.
We believe the provisions set out under paragraphs 10, 17 and 18 of the Code relate to the power
to install overhead lines. We note from Paragraph 3.65 of your Consultation Paper that the Law
Commission is also under this impression. To that extent, we have no observations as the
systems operated by Arqiva are either wireless or entail the use of underground cables.
However, there are problems associated with the wording of Paragraph 18, as it can and has
been interpreted to include any apparatus installed 3 metres above ground level. This would
include therefore any radio mast or tower and any apparatus installed on that mast above 3
metres, i.e. everything.
In our experience there does not seem to be any consensus amongst the main operators as to
whether Paragraph 18 must be complied with. Most, including Arqiva take the view that these
provisions are not relevant to radio masts or towers and so in general notices are not affixed. The
main exception to this is Airwave and we attach a copy of the judgment of John Edward Hensher
v Airwave MM O2 Limited, dated 24 August 2004. You will see that this related to the installation
of a mast, as opposed to overhead lines and that the Defence admitted that Paragraph 18
applied.
It does concern us that others may interpret the provisions of Paragraph 17 and 18 as binding
upon what in essence are our daily activities and indeed the activities of all the main operators,
especially as explained further in 10.13 they constitute an unnecessary duplication of existing
controls. The provisions therefore need clarification to comply would be a major and unnecessary
administrative burden and we need to have lifted the possibility of being accused of committing an
offence.
10.12 Consultees are asked to tell us their views about the right to object to overhead apparatus.
See our response to 10.11
Consultation Paper, Part 3, paragraph 3.68.
Page 1358 of 1868