Law Commission Report
Law Commission recommendations
In June 2012, following a request by the Government as part of its wider review of electronic communications regulation, the Law Commission published a consultation on proposals to reform the Code. In February 2013, the Law Commission published its report recommending how the Code should be reformed. The report does not contain a draft bill, although the Law Commission advises that the revised Code should be a complete redraft, not a mere amendment of the existing Code, and that it should not be retrospective.
The Law Commission's main recommendations are as follows.
The revised Code should continue to regulate relationships between Code operators and landowners and occupiers, whether these arise by agreement or, where agreement cannot be reached, through the procedures prescribed by the Code. It should set out a list of Code rights, granted to Code operators, which will be protected by the provisions of the revised Code, including the right to keep apparatus installed on, under or over land, to inspect, maintain and operate that apparatus and to carry out works on land for installation of apparatus.
Where Code rights are granted in a lease, the revised Code should make no special provision as to who should be bound by the lease; where Code rights are granted otherwise than in a lease, the revised Code should provide for them to bind successors in title to the grantor and those whose interest derives from the title of the grantor. Code rights will be overriding interests (where they are not granted in a lease) and the grant of such rights will not be a relevant disposal for the purposes of the Landlord and Tenant Act 1987 (so that residential tenants will not enjoy rights of first refusal in relation to these rights).
A Code operator should be able to assign the benefit of any agreement or lease that confers Code rights without restriction or payment (except that a lease may require the assignor to give an authorised guarantee agreement). After assignment of an agreement (but not a lease), the assignor will not be liable for future breaches of that agreement after the site provider has been notified of the name and address of the assignee (such notification should also be given on assignment of a lease).
Code operator should be able to upgrade or share equipment within a physical structure of which the Code operator has exclusive possession, so long as the sharing or upgrading is not visible from outside the structure and imposes no burden on the site provider, and any obligation to pay for such upgrading or sharing shall be void.
The tribunal (normally the Lands Chamber of the Upper Tribunal) should be able to grant Code rights to a Code operator, or order that Code rights shall bind a landowner (so long as none of the grounds for bringing Code rights or the lease granting them to an end are made out by the landowner) if the prejudice to the landowner can be compensated in money and the public benefit that is likely to be derived from the making of the order outweighs the prejudice to the landowner, bearing in mind the public interest in access to a choice of high quality electronic communications services. A Code operator should be free to initiate proceedings for the imposition of Code rights as soon as its notice requiring the grant of Code rights has been rejected by the landowner.
The distinction between compensation available to a wide range of landowners and consideration paid only to those who confer Code rights or have them imposed on them should be maintained. Compensation should be payable by Code operators to those against whom Code rights are created, those who are bound by Code rights, those who suffer depreciation in the value of an interest in neighbouring land, those who are required to lop trees and vegetation overhanging a street pursuant to a notice served by a Code operator and those who are entitled to require the removal of a Code operator's apparatus, in respect of the period until the apparatus is removed or becomes the subject of Code rights, and the expenses of removal, where appropriate. Code operators should pay the valuation and legal costs of those claiming compensation.
Landowners should not have a general right to have apparatus moved or otherwise altered beyond any expressly agreed. There should be a new system for the removal of apparatus that does away with the current overlap between the Code and the Landlord and Tenant Act 1954 (a lease granted primarily to confer Code rights should not fall within the 1954 Act). Code rights should continue despite their contractual expiry while giving landowners the right to have equipment removed when they plan to redevelop or where the Code operator is in breach of its obligations. Where these grounds are not made out, the tribunal may make an order conferring fresh or amended Code rights. Terms on which the Code rights are held may be amended by serving a notice on the other party, in the prescribed form.
The revised Code should preserve Code operators' rights, in paragraph 10 of the current Code, to install and keep installed lines passing over third party land which are connected to apparatus. There should be rights to object to lines kept installed on or over land and apparatus kept installed on, under or over tidal water or lands. The revised Code should include a right to object to apparatus the whole or part of which is at a height of 3 metres or more above the ground, exercisable by occupiers and landowners of neighbouring land, the enjoyment of which may be prejudiced due to the proximity of the apparatus, unless the occupier or landowner is bound by Code rights in respect of that apparatus. Code operators should have the right to require the cutting back of any tree or other vegetation that overhangs a highway where it interferes with apparatus, and otherwise corresponding with the provisions of paragraph 19 of the current Code. The revised Code should not include a provision equivalent to that in paragraph 8 of the current Code, providing for potential subscribers to serve a notice on Code operators to compel them to use the powers under the Code to acquire an interest in another's land compulsorily.
Lands Chamber and Ofcom
Most Code disputes should be determined by the Lands Chamber of the Upper Tribunal. Code operators should be able to apply to get early interim access to sites where all terms are agreed other than price. Ofcom should produce forms; use of such forms by landowners and site providers will be optional, but use by Code operators should be compulsory. Ofcom should consult on standard forms of agreement between landowners and Code operators, for optional use, and should provide a code of practice covering issues such as the provision of information to landowners, conduct in negotiations with landowners, the content of agreements granting Code rights, and relationships with those whose property adjoins land where apparatus is sited (including highways).
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