New Electronic Communications Code removed from the Infrastructure Bill at last minute

Posted: 29/01/2015

The amendment to the Infrastructure Bill introducing a new Electronic Communications Code has been withdrawn by the Secretary of State for Transport, Patrick McLoughlin, at the last minute. Industry consultation on the new ‘Code’ is now hopefully expected to be before the General Election in May.

The Government had tabled a 59 page amendment to the Infrastructure Bill, introducing an updated version of the Code. The withdrawal of the amendment appears to be in response to criticism that introducing the Code so late in the day (during the final stages of the Bill’s passage through Parliament) left little time for proper scrutiny.

Despite harbouring concerns about some provisions within the Code, according to a BPF press release, the BPF had praised it for being “broadly very sensible” and “would now like to see it subjected to a full period of consultation before being drawn up and enacted”.

The Code was enacted in 1984 and regulates the legal relationships between landowners and certain network operators. Importantly, in some cases, it enables network operators with Code powers to compulsorily acquire rights over land. In modern times, it applies to the infrastructure forming networks which support broadband, mobile internet and telephone, cable television and landlines.

Criticised by courts and the people who work with it, the current Code was famously described judicially as “not one of Parliament’s better drafting efforts … one of the least coherent and thought-through pieces of legislation on the statute book”.

The Law Commission Report No 336 published on 28 February 2013 sets out its recommendations for reform. Most notably, the new Code seeks to resolve the inconsistencies between the current Code and other legislation. Under the new Code, an operator will no longer be able to rely on both the security of tenure rights provided by the Landlord and Tenant Act 1954 and the Code. Clarity in this area is welcomed.

Other recommendations include to:

• provide a clearer definition of the market value that landowners can charge for the use of their land, giving them greater confidence in negotiating agreements and giving providers a better idea of what their network is likely to cost
• clarify the conditions under which a landowner can be ordered to give a network provider access to his or her land, bringing more certainty to both landowners and providers and helping them to reach agreement more easily
• clarify the rights of landowners to remove network equipment from land
• specify limited rights for operators to upgrade and share their network equipment
• improve the procedure for resolving disputes under the Code.

Andrew Casstles, social housing development partner at Penningtons Manches, said: “The existing Code has always presented challenges when redeveloping land with telecoms equipment in situ as it sits so uncomfortably with other legislation.

“Although it will be with us for a while yet, we hope that further consultation will allow the generally sensible revisions to be fine-tuned. Taking a little more time now to get things right should result in greater certainty for all concerned in the future.”

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