Electronic Communications Code

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

This project is complete. In December 2014, the Department for Culture, Media and Sport announced that it would reform the Code based on our recommendations. Government prepared legislation for a new Code and tabled it as an amendment to the Infrastructure Bill, but that amendment was later withdrawn. Government consulted on its draft legislation between February and April 2015. On 17 May 2016, Government published details of its revised proposals for a new Code (see below). Following further consultation and additional independent economic analysis, Government’s proposed reforms remain broadly aligned with our recommendations, with some key exceptions. In particular Government has decided to adopt a different basis for the valuation of Code rights and to confer automatic rights to upgrade and share apparatus. The Government’s proposals will be included in the Digital Economy Bill announced in the Queen’s Speech on 18 May 2016. They were implemented in the Digital Economy Act 2017.

We have made recommendations to form the basis of a revised Electronic Communications Code.

The Code was enacted in 1984 to regulate landline telephone provision. It sets out the regime that governs the rights of designated electronic communications operators to maintain infrastructure on public and private land. In modern times, it applies to the infrastructure forming networks which support broadband, mobile internet and telephone, cable television and landlines. This project focuses on private property rights between landowners and electronic communications providers; it does not consider planning.

Often, the rights to access private land are agreed with the landowner. However, where this does not happen, the operator has the power to apply to the court for an order to dispense with the need for agreement; where the court does this, it will also make a financial award in favour of the landowner.

The current Code has been criticised by courts and the people who work with it as out of date, unclear and inconsistent with other legislation.  Our recommendations aim to bring clarity and certainty to landowners and network providers, enabling them to reach agreements more easily and quickly, saving them time, effort and money.

The project

Our work on this project commenced in September 2011. On 28 June 2012 we published our consultation paper (Law Commission Consultation Paper No 205), to which we received a large number of detailed responses from a range of consultees including landowners, operators, lawyers, valuers and others with a professional and personal interest in the operation of the Code. The consultation paper, together with other material related to the project, can also be found on this page.

Our recommendations

We published our report (Law Commission Report No 336) on 28 February 2013. The report sets out and explains our recommendations for reform, which would:

  • 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;
  • resolve the inconsistencies between the current Code and other legislation;
  • clarify the rights of landowners to remove network equipment from land;
  • specify limited rights for operators to upgrade and share their network equipment; and
  • improve the procedure for resolving disputes under the Code.

As agreed with the Department for Culture, Media and Sport at the inception of the project, our report does not include a draft Bill; it will be for Government to draft and implement a revised Code.

The Government’s consultation on its draft Code, published on 26 February 2015, is available here.

The Government’s revised proposals for a new Code, published on 17 May 2016, are available here.

Documents and downloads

Project details

Area of law

Property, family and trust law

Commissioner

Professor Elizabeth Cooke