(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 109 of 130
10.8 We ask consultees to tell us their views about who should be bound by code rights
created by agreement, and to tell us their experience of the practical impact of the current
position under the Code.
42332010.1\af02
Consultation Paper, Part 3, paragraph 3.40.
Paragraph 2 is just incomprehensibly drafted and is a terrible mish-mash of compromise by
Parliament. See Alicia Foo's views in her Blundell Lecture "Property Problems under the
Electronic Communications Code"
property problems
under the electronic communications code.pdf
at paragraph 5.2.5.
If the Code is to work properly, then all parties whether up or down the chain of superior or inferior
interests should be bound but subject to the following safeguards:
a) ensure that the principles of not unreasonably withholding consent enshrined in section 134 of
the Communications Act 2003 apply across the board (i.e. not just in a building) so that consent is
not unreasonably withheld whether or not in a landlord and tenant situation and that the only
grounds for refusing are if another system / apparatus is installed / about to be installed at the
same cost;
b) there is a clear record of what equipment has been installed (there is a duty on the operator to
update with sanctions) to avoid the proliferation of equipment; meet the landlords' concerns about
"control" and superior interests can see at a glance just what has been installed; and
c) if these guidelines / safeguards are not met a sanction could be for there to be an opportunity
for the operator's conduct to be referred to Ofcom.
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?
Consultation Paper, Part 3, paragraph 3.53.
The necessary and expedient test in other "utility" statues has much to commend it for the
simplicity of the test.
As stated in Alicia Foo's Estates Gazette article on the Code
2012
EG - Ringing the
changes.pdf
published 13 August
"The access principle is outdated. Devised 30 years ago to encourage competition / rollout of
networks where hitherto there had been only one operator (BT), now the question is not "has
there been a denial of access to networks or services?" as a range of networks and services are
largely available save for certain (largely rural) parts of the UK. Any new test should balance
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