Electronic Communications Code causes sparks

07/02/2019

The Electronic Communications Code (ECC) that came into force in late 2017 gave operators enhanced powers to install network facilities in a bid to speed up the country’s connectivity.

But what happens if they want to use your land or buildings for their infrastructure?

Steven Corfield, our Principal Development Partner for Agricultural Business, explores what a recent ruling could mean for farmers, landowners and rural businesses:

The ECC caused debate even at the stage of drafting the legislation as there was concern that Parliament was putting more emphasis on the public interest in the roll out of new electronic communications networks rather than the rights of landowners.

So the industry was watching with interest the recent judgement in Cornerstone Telecommunications Infrastructure Limited v University of London, as it was one of the first commentaries from the courts on the implementation of the new code. It was a test to see how far operators can go to demand the right to look at sites and seek court orders to enforce the granting of leases in appropriate cases.

While the Cornerstone case referred to a rooftop of a city building – not a rural site – it has the same impact regarding the operator’s abilities to exercise its rights anywhere in England and Wales.

In a nutshell, the University of London didn’t want the mast on the roof of its building and objected to allowing operators to survey the roof to see if it was suitable. When the university refused to give access the operators applied to the court with two fundamental questions - whether a right of access for surveying is a Code right and whether an operator can apply for an interim Code agreement for access to proceed with a survey without being bound to take on a full Code agreement afterwards.

The tribunal supported the operator on both counts. The burden of proof still rests with the operators but the court has to look at the individual circumstances and, in the case of access for surveying, it needs to be considered if it’s sufficiently easy for the operator to make good or compensate the owner for any inconvenience or damage caused.

Access for the purpose of carrying out initial surveys is not an automatic right but where the operator simply requires access for a non-intrusive survey, tribunals appear to be supporting the operators in view of the Government’s overall policy.

In terms of rural sites the same principals will apply but the possibility of interruption and damage to buildings is probably significantly lower in most rural locations. Landowners should always check with their solicitors or land agents if they have queries about the Code.

* Steven specialises in providing advice to farming and estate clients in respect of freehold and leasehold matters, tenancies, partnership agreements, company matters, mineral rights, sporting rights, telecommunications and renewables and all matters associated with rural businesses including statutory legislation and the Environment Agency. Steven sits on both the Shropshire and National and Parliamentary Committees of the Country Land & Business Association (CLA).

Steven can be contacted on 01743 266268 or steven.corfield@fbcmb.co.uk.

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