(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 107 of 130
10.5 We provisionally propose that code rights should be technology neutral.
Do consultees agree?
4
Consultation Paper, Part 3, paragraph 3.18.
(1) The principle that no technology should be discriminated against is a good objective but
unworkable for all elements of the Code. Whilst some elements of the Code can be applicable to
all technologies, for other elements of the Code, the technologies and the particular issues they
face are too different and must be treated separately. Specifically, the wireless sector (relating to
mobile phone operators) is significantly different to the wireline sector (cable/fibre optic
operators).
10.6 Do consultees consider that code rights should generate obligations upon Code Operators
and, if so, what?
Consultation Paper, Part 3, paragraph 3.19.
Yes
(1) obligation to remove apparatus and make good damage caused to land at end of term
(although allow parties to contract out of this obligation to reflect site specific circumstances).
(2) obligation to take formal steps to seek to renew expiring written agreements to avoid delay at
expiry as operators often have no incentive to re-negotiate and put a fresh agreement in place as
they are code protected and this can leave landowners in a state of limbo
(3) obligation to insure (to be no less than £5 million) for personal injury and death or damage to
property caused directly or indirectly to an individual or third parties’ property
(4) obligation to continue to comply with all the terms of an existing agreement which has expired
(where operator has remained on site) including obligation to pay previous annual fee until such
time as a new agreement in writing is concluded or apparatus is removed (effectively “holding
over provisions” equivalent to Landlord and Tenant Act 1954).
This last proposal would encourage operators to commence renewal negotiations earlier and
ensure that landowners are properly compensated during the period whilst the operator remains
on site under the Code and no negotiations are commenced by the operator. Many landowners
are perfectly happy to allow an operator to renew but are concerned as no legally binding contract
agreement exists after expiry of an agreement.
3528814-2-Electronic Communications Code - Shoosmiths Response Form
Page 1384 of 1868