(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 107 of 130
10.9 We ask consultees for their views on the appropriate test for dispensing with the need for
a landowner’s or occupier’s agreement to the grant of code rights. In particular, consultees
are asked to tell us:
(1) Where the landowner can be adequately compensated by the sum that the Code
Operator could be asked to pay under a revised code, should it be possible for the
tribunal to make the order sought without also weighing the public benefit of the
order against the prejudice to the landowner?
(2) Should it be possible to dispense with the landowner’s agreement in any
circumstances where he or she cannot be adequately compensated by the sum that
the Code Operator could be asked to pay under a revised code?
(3) How should a revised code express the weighing of prejudice to the landowner
against benefit to the public? Does the Access Principle require amendment and, if
so, how?
6
Consultation Paper, Part 3, paragraph 3.53.
(1) No. This would effectively entitle any Operator to pick and choose entirely at its own
discretion where it wants sites. It would hold to ransom any landowner that does not have
immediate development plans or other clear evidenced reasons for not wanting an Operator on its
land. A landowner should as a general principle be entitled to do as it wishes with its own land.
(2) No. A landowner has legal estate in land and is entitled to enjoy the benefit of its own asset or
to adequate compensation if such rights are to be fettered. If it is not possible to adequately
compensate then no order should be made. It is likely that such a scenario would be extremely
rare in practice but that does not mean to say that the possibility would not arise and the fact that
it is unlikely should not be a reason to include it in the Code in the first place.
(3) Yes – the current Access Principle is very hard to explain to clients. It needs simplifying. It
also needs clarification as there is a big difference between denying a person access to “an”
(single) network where there are plenty of other networks available already to the public and
denying access to “the only” available network or service in an area which would otherwise be
available to the public if the rights were granted.
The Code was drafted in the context of getting at least one mobile telephone network rolled out
and available to the vast majority of the public so that if in one geographical area there was no
coverage because there were no freely available mast sites, an operator could exercise its
paragraph 5 powers to acquire rights over land to enable its service/network to cover that
geographical area and the general public in that area would then benefit from the site. In this
instance it is easy to see how the principle that the public benefit would outweigh private
prejudice.
However the reality now is that most members of the public in most areas have a choice of
networks and that preventing one operator from using one site or mast, whilst affecting one
potential area of coverage would not in actual fact prevent the general public from having access
to at least one or more other networks. In such circumstances it is difficult to see how the refusal
of the court to grant paragraph 5 rights in such an instance could be said to be denying access to
“a” network or service as others would remain available.
Where there is effective wireless coverage of an area by an existing Operator, a new Operator
should not be able to compulsorily obtain a right over land. It should be left to landowners to
negotiate with Operators in a free market. The roll out of wireless cell sites in the UK has been
very effective and it is widely acknowledged that the UK has the most comprehensive level of
wireless infrastructure in Europe. A free market has not affected wireless infrastructure.
We understand that the fibre/cable network is less developed, but the same principles apply –
once an area has access to one fibre/cable network, other networks should not be able to
compulsorily acquire separate rights over landowners. We submit that competition and quality of
service issues relating to Operators should be dealt with directly with them and not resolved to the
detriment of landowners.
3528814-2-Electronic Communications Code - Shoosmiths Response Form
Page 1386 of 1868