(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 105 of 130
unrealistic payment to the landowner, because the Code does not provide either
sufficiently swift compulsion or clearly defined levels of payment”.
6. We do not contest either the need for a Code or the fact that a Code drafted in the early
1980s is bound to have been overtaken by the rapid progress of technological change. We
are, however, concerned that any revised Code should not be weighted unduly against the
interests of landowners.
7. In that connexion, we note Clause 7 of the Growth and Infrastructure Bill introduced into the
House of Commons on 18 October 2012. The Explanatory Notes to the Bill explain the
purpose of Clause 7 as follows:
“Clause 7 adds the need to promote economic growth as another consideration to
be taken into account in making regulations under section 109 of the
Communications Act 2003, which set out the conditions and restrictions subject to
which the electronic communications code (which is in Schedule 2 to the
Telecommunications Act 1984) is applied to operators”.
8. We note that Clause 7 about operators rather than landowners. However, we hope that the
introduction of the Growth and Infrastructure Bill will not, in effect, pre-empt the outcome
of the Law Commission’s present consultation.
Compensation and consideration
9. Paragraph 6.35 proposes
“… a single entitlement to compensation for loss or damage sustained by the exercise of
rights conferred under the Code, including the diminution in value of the claimant’s
interest in the land concerned or in other land, should be available to all persons bound
by the rights granted by an order conferring code rights.
Do consultees agree?”.
10. If, as we surmise, the result of this will be compensation only, then we certainly do not
agree.
11. Paragraph 3.53(2) asks whether it could be right to compel a landowner in any
circumstances where financial compensation would not be adequate; but the consultation
document does not then indicate how such cases would be dealt with if the conclusion were
that in some circumstances compulsion would be appropriate.
12. Charities hold their buildings and other property partly in order to conduct within them
those activities for which they were established (eg the physical plant of the Oxford and
Cambridge colleges or the cathedrals) and partly to generate income which will enable the
charities to fulfil their charitable purposes (eg income from tenanted agricultural land).
13. In law, charity trustees are under an overriding fiduciary obligation to protect the assets of
their trust and to make sure that those assets are properly applied for the objects of the
Page 1348 of 1868