Overhaul of telecoms v landowners rules can only improve a bad law, says expert

Out-Law Analysis | 28 Oct 2011 | 9:47 am | 2 min. read

OPINION: Progress comes at a cost, as landowners are finding. The information we increasingly find at our fingertips has to travel somehow, and the rules governing networks' access to land have been confusing, unco-ordinated and counterproductive.

The Law Commission, thankfully, has announced it will review the Electronic Communications Code and the announcement cannot have come soon enough. The Code is a mess and needs urgent work.

We all enjoy near-unfettered access to internet and telecoms services due to the ubiquitous broadband and mobile networks that span the country. But those networks are physical things, and have to exist on land. It is vital to society that the interests of landowners and network operators are balanced appropriately.

That job has been done by the Code which, since 1984 (with changes in 2003), has governed the right of network operators to access private and public land.

Such a code is essential – no network would exist if companies had to negotiate access with every single landowner without legislative help. The Code restricts landowners' rights to refuse permission, which is as it should be.

The problem is with exactly how it does that. It is inconsistent and confusing and hard for lawyers to understand or navigate around. This makes it almost impossible for lay people to use.

Don't just take my word for it – judge after judge has declared it a problem, and they have not minced their words. Mr Justice Lewison, as he then was, said it was "one of the least coherent and thought-through pieces of legislation on the statute book".

There are two regimes within the Code. The 'general regime' applies to most ordinary landowners. The 'special regime' applies mostly to other infrastructure providers such as highway authorities, rail and canal companies.

That differences in the procedures surrounding the giving of two different categories of notice is a complicating factor, but a manageable and understandable one. That there are differences between otherwise-similar situations within each regime is needlessly confusing.

That those differences extend also to the timing of applications to tribunals, and indeed to which tribunals disputes must be addressed is unforgivable.

Complexity is necessary in certain situations, of course. But clarity is essential. The Code combines complexity with an obscure and tortuous mode of expression that would make the plot of a nursery rhyme seem impenetrable.

The way the Code is put together is inconsistent, the terminology used change throughout it and the whole thing is labyrinthine and needlessly difficult.

This really matters because this Code balances two vital interests. It is extremely important that the rights of landowners to control, in most circumstances, what happens on their land is respected.

But similarly it is very important that these networks are supported. The Government certainly thinks so – its broadband strategy is to have a 'digital hub' in every community in the country. That cannot be done without physical networks.

The Law Commission said that its review of the Code will consider "whether the Code can be made more transparent, user-friendly and efficient in resolving disputes".

So how could the Code improve?

First off, it could set out a single standardised process, doing away with the 'general' and 'special' regimes and could introduce a clear, single way of processing claims.

Secondly it could establish better payment mechanisms. These could be based on pre-existing compulsory purchase principles, or could be based on a revenue-share agreement in areas of high traffic.

Thirdly, it could look to establish different mechanisms for the last one third of the country to receive broadband than more popular areas to ensure that networks covering those areas are given priority.

The Law Commission will report in spring 2013, it has said. The Code performs a vital function and we can only hope the Commission clears up a very confusing piece of law.

Alicia Foo is a property law specialist at Pinsent Masons, the law firm behind Out-Law.com