Proposed revisions to Electronic Communications Code give landowners too much power over network providers, expert says

Suzanne Gill of Pinsent Masons, the law firm behind Out-Law.com, said that more should be done to ensure "swift accessible justice" for those cases where parties could not agree over access and compensation. The Law Commission, which has just published a consultation (146-page / 440KB PDF) containing revisions to the Code, has suggested the Lands Chamber as a possible alternative to the "too slow" county courts system.

"I think the UK courts system is pretty good – it's just not fast enough," Gill said. "Northern Ireland already has a specialised system for landlord and tenant disputes - we should learn from that and bring it over here.

"While it can be difficult to strike a balance between the need for telecommunications companies to provide a reliable service to the entire population and a landowner's freedom to do what he likes with his land, we still need to be able to compel landowners to agree to grant rights fundamental to modern society to providers," she added.

The Electronic Communications Code gives electronic communications network providers rights to install and maintain equipment - such as masts, cables and conduits - on public and private land. Where a network provider cannot agree the necessary rights to access private land with a landowner, the Code gives it the power to apply to the court for an order giving it the necessary rights. If an order is made, the landowner is entitled to financial compensation.

Professor Elizabeth Cooke, the Law Commissioner leading the project, said that clarifying the law was becoming "urgent" in light of the Government's aim of delivering the best superfast broadband network in Europe.

"Facilitating the reach of e-communications is crucial to the UK, not only to support our economy but also to provide us with the modern electronic infrastructure we need as an increasingly interactive society," she said. "Our aim is to bring greater clarity to the statutory framework and enable issues arising under the Code to be dealt with more efficiently and proportionately."

In the consultation document, the Law Commission said that "very few disputes" were ultimately referred to the courts due to the "poor procedures" under the existing Code. "Commercial pressures are such that Code Operators cannot take the time to go through them," it said. "That changes the balance of power in negotiations because Code Operators can only use price as an incentive for landowners, without (in practical terms) being able to fall back on the Code procedures for compulsion."

Other alternatives the Law Commission proposes to the county court system are adjudication, or having compensation determined by an appointed surveyor similar to the existing two-stage process for resolving party wall disputes between landowners.

The existing test for when a court can compel a landowner to allow access to an electronic communications provider is, according to the consultation, "not easy to understand". What is referred to as the 'overriding principle', that "no person should unreasonably be denied access to an electronic communications network or to electronic communications services", does not in fact "override" the rights of landowners but instead is a "factor to be taken into account" by the courts.

"The principle was developed at a time when one of the biggest issues was ensuring universal access to fixed line telephones; today, there is a mature network and many areas have access to electronic communications services," the consultation said. "Consumers and society as a whole do not just need services, but fast, high quality, robust and modern services."

It asks whether a modern test should acknowledge the need for "high quality" services.

Although the Law Commission can only recommend changes to the law of England and Wales, it intends to comment on any issues of specific relevance to Scotland and Northern Ireland in its final report. The Electronic Communications Code applies across the UK.

The Government is planning a wider review of the regulatory regime for the UK communications sector and plans to introduce a Communications Bill by the end of the current Parliament.