(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 106 of 130
10.38 We ask consultees to tell us their views about the procedure for enforcing removal. Should
the onus remain on landowners to take proceedings? If so, what steps, if any, should be
taken to make the procedure more efficient?
Consultation Paper, Part 5, paragraph 5.49.
We appreciate that the current position that the landowner can only serve a notice once the lease,
licence or other arrangement has come to an end cannot be retained. Also the fact that the
Landowner has to apply for a double order - one to enforce removal and one for removing it in
default seems illogical.
We suggest that the Landowner should still be responsible for serving the initial notice but we
also suggest a standardised notice process has to be incorporated within a new/revised Code. All
notices whether served by Landowners or Code Operators should be standardised. At the
moment only the Counter-Notices are standardised and in our experience it can be difficult to tell
what amounts to a code notice. Also the notices should be served on any party with an interest or
in occupation/sharing/using the land. This information could be ascertained in a similar way to
section 40 of the Landlord and Tenant Act 1954.
The current 28 day time limit is not long enough especially if the Code operator was minded to
vacate the site. In our experience the average time to move a site is two years.
10.39 We ask consultees to tell us whether any further financial, or other, provisions are
necessary in connection with periods between the expiry of code rights and the removal of
apparatus.
Consultation Paper, Part 5, paragraph 5.50.
Our view is that landowners/licensors would be reluctant to accept payment for this interim period
because of the potential risk of waiving the breach. However once the operators has removed the
apparatus the landowner/ licensors should be able to claim payment equal to the letting value of
the property under the code for this intervening period.
10.40 We provisionally propose that Code Operators should be free to agree that the security
provisions of a revised code will not apply to an agreement, either absolutely or on the
basis that there will be no security if the land is required for development.
Do consultees agree?
Consultation Paper, Part 5, paragraph 5.51.
We do not agree. In our experience if there is an option for the Landowner to exclude security of
tenure rights then they will insist upon it. Also with the suggestion that the security of tenure rights
under the Landlord and Tenant Act 1954 will also be excluded then Operators will be left with no
security of tenure at the end of the contractual period.
This is unacceptable given that our customer contracts extend beyond the term of our land
agreements. Our customer contracts often extend beyond the term of our land agreements either
because a new customer has come onto a site after the initial acquisition or because we have
acquired a new customer portfolio as the result of a corporate merger or acquisition.
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