The Electronic Communications Code – Flying lines and the Court’s power to impose agreement

The Digital Economy Act 2017 introduced a new Electronic Communications Code (“the ECC”) which took effect from 28 December 2017. The ECC grants statutory undertakers, such as BT or other service providers, the power to exercise rights over land provided that they comply with certain conditions and criteria.

The ordinary rule pursuant to the ECC is that statutory undertakers can only install apparatus on another person’s land if an agreement is reached between the parties regarding access (commonly called a “wayleave agreement”). This respects the common law position that an owner of a freehold estate in land owns such land “all the way to Heaven and all the way to Hell” and is able to deny any third party access to or use of their property without prior permission.

However, the ECC imposes two important exceptions to this common law position.

Firstly, there are provisions within Part 4 of the ECC for the courts to impose an agreement upon a landowner or interested party to grant the undertaker a “code right” to install or maintain apparatus.

Secondly, there are additional standalone rights afforded to statutory undertakers in the ECC. One such right provided under Part 11 of the ECC is the power to “fly lines” – which means the right for an undertaker to install and keep telephone lines passing over land in the vicinity of other electronic apparatus. This right can only be exercised if such lines are not, at any point where they pass over the relevant land, less than three metres above the ground or within two metres of any building over which they pass. Pursuant to Part 9, an undertaker also has a statutory right to keep and install communications apparatus on, under or over tidal water or lands without a landowner’s permission.

The right to object

Pursuant to Part 12 of the ECC, an occupier or person with an interest in the land affected by an undertaker attempting to use their right to “fly lines” or install apparatus in tidal waters/land has the right to object to the installation.

The procedure for objection depends upon whether complaints are brought within 12 months of the installation or afterwards, but in either case an objection notice must be issued by the complainant upon the statutory undertaker who then must issue an application to the Upper Tribunal (Lands Chamber).

When dealing with any objection application, the Court or relevant tribunal must uphold the objection raised by a landowner if the following conditions are met:

(1)     The apparatus appears materially to prejudice the objector’s enjoyment of, or interest in, the land;

(2)     The tribunal must agree that upholding the objection and requiring alteration of the relevant apparatus or lines will not:

(a)     substantially increase the cost or diminish the quality of the service provided by the operator’s network to persons who have, or may in future have, access to it;

(b)     involve the operator incurring substantial additional expenditure; or

(c)     give to any person a case at least as good as the objector has to have an objection under this paragraph upheld.

The ECC makes clear that there is no right to object if the apparatus installed and complained of replaces any apparatus that is not substantially different from anything previously installed in the same location or existing apparatus has not been moved to a significantly different position.

The right to consideration and compensation

If the relevant tribunal upholds an objection to an undertaker’s exercise of its Part 9 or Part 11 powers, it may by order do any of the following:

(a)    direct the alteration of the apparatus to which the objection relates;

(b)   authorise the installation (instead of the apparatus to which the objection relates), in a manner and position specified in the order, of any apparatus specified in the order;

(c)    direct that no objection may be made in respect of any apparatus installed pursuant to the tribunal’s order.

If the relevant tribunal is considering making an order directing the alteration of any apparatus, or authorising its installation, it must not make the order unless it is satisfied that either the operator has all appropriate rights to alter/install the relevant apparatus or that the operator would have those rights if there had been an application to impose an agreement upon the parties and it would be appropriate to impose such an agreement.

In respect of applications to impose agreement upon a landowner, the relevant tribunal may only make an order imposing agreement if it considers that both of the following conditions are met:

(1)   the prejudice caused to the landowner by the order is capable of being adequately compensated by money; and

(2)   The public benefit likely to result from the making of the order outweighs the prejudice to the relevant person (which includes having regard to the public interest in access to a choice of high quality electronic communications services).

As indicated by the wording of this provision in the Code, there is clearly a heavy presumption that an order will be granted and thus significantly infringe upon a landowner or interested party’s rights in their property.

A crumb of comfort for landowners will be that any order imposing agreement upon a landowner must include an award of some consideration in money.

The amount of consideration payable must be an amount representing the market value of the landowner’s agreement to confer the code right on the statutory undertaker. A tribunal can also make an award of damages for loss sustained as a result of exercise of a code right to which any order relates.


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