1st Edition

The Electronic Communications Code and Property Law Practice and Procedure

By Falcon Chambers Copyright 2019

    Life now without access to electronic telecommunications would be regarded as highly unsatisfactory by most of the UK population. Such ready access would not have been achieved without methodical and ultimately enforceable means of access to the land on which to install the infrastructure necessary to support the development of an electronic communications network. Successive governments have made such access a priority, regarding it as a principle that no person should unreasonably be denied access to an electronic communications network or electronic communications services. The enactment of the Telecommunications Act 1984 and its revision by the Communications Act in 2003 have played their role in the provision of an extensive electronic infrastructure in the UK, while their reshaping by means of the Digital Economy Act 2017 will continue that process. Throughout that process, a little publicised series of struggles has taken place between telecommunications operators and landowners, as they seek to interpret the Electronic Communications Code by which their rights and obligations have been regulated.

    This book describes the problems that accompanied the Old Code (which will continue to regulate existing installations and agreements); and the intended solutions under the New Code. The eminent team of authors explain the background, provisions and operation of the old code and the new one, providing practical and jargon-free guidance throughout. It is sure to become the reference on this topic and is intended as a guide for telecommunications operators, land owners, and of course for their advisers in the legal and surveying professions.

    All members of Falcon Chambers, comprising nine Queen’s Counsel and 30 junior barristers, specialise in property law and allied topics, including the various incarnations of the Electronic Communications Code. Members of Falcon Chambers, including all the authors of this new work, have for many years lectured and written widely on the code, and have appeared (acting for both operators and landowners) in many of the few reported cases on the subject of the interface between property law and the code, including for example: Geo Networks Ltd v The Bridgewater Canal Co. Ltd (2010); Geo Networks Ltd v The Bridgewater Canal Co. Ltd (2011); Crest Nicholson (Operations) Ltd v Arqiva Services Ltd (2015); Brophy v Vodafone Ltd (2017).

    I

    Introduction

      

    Introduction

      

    Legislative history

      

    The Electronic Communications Code 2003: an overview

      

    The European dimension

     

    II

    Electronic Communications Code 2003 (the Old Code)

     

    Old Code: general and special regime overview

      

    Operators under the Old Code

      

    Old Code general regime

      

    Old Code general regime: financial provisions

      

    Old Code special regimes

      

    Alteration and removal of apparatus under paragraph 20

      

    Removal of apparatus under paragraph 21

      

    Abandonment of apparatus

     

    Old Code sundry matters

      

    III

    Electronic Communications Code 2017 (the New Code)

      

    The Electronic Communications Code and property law: key concepts

      

    What are code rights?

      

    Who may confer code rights?

      

    To whom may code rights be granted?

      

    Over what may code rights be granted?

      

    The agreement conferring code rights

      

    Assignment, upgrading and sharing apparatus

      

    Imposition of code agreements

      

    Termination of code agreements

      

    Modification of code agreements

      

    Rights to require removal

      

    The New Code and the 1954 Act

      

    Transport land rights

      

    Street works, tidal water rights and undertaker’s works

      

    Overhead apparatus

      

    Trees and vegetation

      

    Consideration and compensation under the New Code

     

    IV

    Matters common to both codes

      

    Transitional provisions

      

    Notices under the codes

      

    Dispute resolution procedure under the codes

      

    Code avoidance

      

    Electronic communications and planning

      

    Compulsory purchase and entry for exploratory purposes

      

    Telecommunications and non-domestic rates

      

    Land registration

      

    Electronic communications and competition law

      

    The position in Scotland

      

    The role of OFCOM

     

    V

    Drafting

      

    Drafting considerations for code agreements

     

    VI

    The New Code – Annotated

     

    VII

    Appendices

     

    A

    Extracts from the Telecommunications Act 1984 and the Communications Act 2003

    B

    2017 Code and extracts from the Digital Economy Act 2017

    C

    Statutory Instruments

    D

    OFCOM Code of Practice

    E

    OFCOM Template Notices

    F

    OFCOM Standard Terms

    Biography

    From Falcon Chambers, London, UK:

    Guy Fetherstonhaugh QC

    Jonathan Karas QC

    Wayne Clark

    Barry Denyer-Green

    Stephanie Tozer

    Oliver Radley-Gardner

    Toby Boncey

    With distinguished contributions from Gareth Hale, Partner, Dentons UK and Middle East LLP, and from Luke Maidens, Shulmans LLP.