(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 113 of 130
Scotland, Northern Ireland or Wales.
A simple process for referring disputes to Arbitration can be set out in the Code. Arbitrators could
be appointed by reference to the RICS or a separate panel. The RICS already has a recognised
panel of Arbitrators that can be called upon with skill sets appropriate to the dispute at hand.
10.50 We provisionally propose that it should be possible for code rights to be conferred at an
early stage in proceedings pending the resolution of disputes over payment.
Do consultees agree?
Consultation Paper, Part 7, paragraph 7.31.
The Code currently confers Code Powers on a CO once it has the Occupiers agreement in
writing. In many cases this is provided by an early access agreement which comprises the basic
terms to be put in to a formal lease. This can result in access for a CO being obtained in a matter
of days after approaching a SP.
CO’s need planning permission for their installations in many cases and they usually apply for
that once terms have been agreed in principle with an SP.
Conferring code powers in this way does work. Other than the provision of a health warning
notice there is little more that needs to be done to change this part of the code.
Conferring Code Powers whilst there is a dispute in process will not speed up access to land. If a
SP is not supportive of a cell site installation it will make the site acquisition process incredibly
slow. Access for site surveys could be denied. Legal intervention could be required at every step.
What currently takes just a few weeks or months, could end up taking years.
It sounds like a nice idea and may work for the installation of pipes or cables across farm land.
However, in relation to the installation of new sites on urban buildings and land, it will massively
slow down the process.
10.51 We would be grateful for consultees’ views on other potential procedural mechanisms for
minimising delay.
Consultation Paper, Part 7, paragraph 7.32.
The best way to minimise delay is to keep the Code as a light touch regime. Only in the most
extreme cases should there be powers to compel a potential SP to come to the table.
In many cases the Code works simply because it is there in the background. Its main weakness is
it doesn’t work in relation to disputes because its forum is too expensive and slow in relation to
the value of the dispute.
To speed up access to land the current paragraph 5 system could be modified to refer the matter
to Arbitration or dispute resolution once a series of steps has been taken by the CO. The current
regime is nebulous once a para 5 notice has been threatened or served. Set out steps for a SP to
respond to the para 5 notice within a certain time, say two months. The para 5 notice could
contain the CO’s terms, including an undertaking to pay the SP’s costs. If one or other step isn’t
taken then the matter can be referred to dispute resolution.
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