(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 109 of 130
ALTERATIONS AND SECURITY
10.32 We provisionally propose that a revised code should contain a procedure for those with an
interest in land or adjacent land to require the alteration of apparatus, including its
removal, on terms that balance the interests of Code Operators and landowners and do
not put the Code Operators’ networks at risk.
42332010.1\af02
Do consultees agree?
Yes in principle.
Specifically: see Alicia Foo's Estates Gazette article on the Code
August 2012 where she comments:
Consultation Paper, Part 5, paragraph 5.11.
EG - Ringing the
changes.pdf
published 13
"The current procedures for / entitlement to relocating apparatus by reason of redevelopment (paragraph
20) and permanent removal (paragraph 21) are complex and inconsistent. Coupled with the additional
complications on timings and procedures under the 1954 Act if the agreements are business tenancies,
these do not "mesh" at all, making it difficult for landowners to know where they stand when seeking to
redevelop their properties or remove the apparatus. A limited form of contracting out of the code is
permitted under paragraph 20 but not under paragraph 21. Further, currently there is little incentive for the
operators to take active steps once their position is protected by serving a counter-notice to a landowner's
notice for relocation / removal.
The Law Commission has concluded that there is to be no contracting out under paragraph 20, but that
the parties should be free to contract out of paragraph 21.
But Freedom of contract is to be encouraged and the distinction drawn between the two paragraphs 20
and 21 is unclear. Why not follow the position under the Landlord and Tenant 1954 Act where the parties
are free to contract in or out and in so doing, taking the consequences? If the recommendation that the
additional layer of protection the 1954 Act provides is removed, this leaves code operators vulnerable so
they should elect for code protection. There should, however, be true contracting out, i.e. no getting code
rights through the back door under paragraph 5. There should be an obligation on code operators to proactively
take steps once served with a landowner's notice."
10.33 Consultees are asked to tell us their views about the alteration regime in paragraph 20 of
the Code; does it strike the right balance between landowners and Code Operators?
Consultation Paper, Part 5, paragraph 5.12.
No. It is skewed in favour of the operator with the requirement that the operator's network should
not be substantially interfered with and with little caselaw and guidance on how it operates, there
is uncertainty on how a court would view the tests in paragraph 20. Such a test is, like the Access
Principle, in our view outdated - it was created at a time to give the operators needed security for
their networks. That is not the case now with mature networks in place, save for the last rural third
of the country. If there is to be a new test then this should be clearly set out and by reference to
the new Access Principle. Further there are inconsistencies throughout which Alicia Foo identifies
in paragraph 6.7 in her Blundell Lecture "Property Problems under the Electronic
Communications Code"
property problems
under the electronic communications code.pdf
which need ironing out.
In particular, as raised in the Blundell lecture, the ability it seems for the operator to be removed
under paragraph 20 should not be circumvented by the operator seeking to get an order ("a
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