What Is The Electronic Communications Code?
The Electronic Communications Code allows Ofcom to grant certain statutory rights to telecommunication operators to facilitate the creation and operation of their networks. The Code regulates the legal relationship between landowners/occupiers and network operators. The code also includes a right of access to a property to carry out preliminary surveys and assess suitability for a future installation.
Ofcom is also responsible for maintaining a register of persons who have been granted Code powers and has an enforcement role concerning compliance by Code operators of any requirements, restrictions or conditions set.
Telecommunication operators can, under the Code install apparatus such as masts, base stations, cables and cabinets on, under or over the land, Inspect, and maintain and enter the land to carry out work on the land for or in connection with the installation of their apparatus even if this may interfere with or obstruct access.
The land may be owned or occupied by the person granting a right. Where an occupier of land confers Code rights on an operator and they have an interest in the land on the date that the Code rights are conferred, then the Code rights will bind their successors in title, a person with a subsequently created interest in the land that is derived out of their interest (or the interest of a successor in title to them) or any other occupier whose right to occupy was granted by them in certain circumstances.
Code rights are binding whether or not they are registered.
The court (Upper tribunal) can enforce a Code right on such terms it feels are reasonable including the payment of consideration and compensation by the telecommunications operator. “Consideration” is for the grant of Code rights and “compensation” in relation to payments for loss or damage.
Consideration is assessed as a sum representing the market value of the person’s agreement to confer or be bound by the Code right. Market value is the amount a willing buyer would pay a willing seller for the agreement in an arms’ length transaction on the terms of the imposed agreement, acting prudently, with full knowledge.
The court has a wide discretion as to the form and timing of consideration, which can include payment of a lump sum or a periodic payment and can be triggered by specified events.
Compensation is for any loss or damage sustained, or that will be sustained that will aim to cover expenses and possible if the facts justify it, the diminution in value of the land. The court can specify the amount of compensation or give directions for its determination including providing the parties agree the amount or that the dispute is referred to arbitration.
An operator will in the first instance seek to agree terms. If it can’t then a process allows them to serve written notice stating what it seeks. If the recipient does not agree within 28 days, they need to serve a counter notice. If the parties can’t agree terms, then the operator can apply to court for an order imposing an agreement.
The court can make an order if it thinks that the prejudice caused to the person can be adequately compensated by money and the public benefit likely to result from an order outweighs the prejudice.
The court may not make an order if it thinks the person intends to redevelop all or part of the land, or any neighbouring land, and could not reasonably do so if the order were made.