The ammendments covered the installation and maintenance of electronic communications infrastructure such as phone masts.
There is now a new consultation which raises many questions.
The NFU will be responding to the current consultation, but to do this we you’re your evidence to back up some of the issues that are being raised.
The department has specifically requested evidence must be given in response.
If would like to look at the consultation document in full it can be found here.
The consultation will close on 30 April 2015 at 5pm. Please submit any evidence to TG91aXNlLnN0YXBsZXNAbmZ1Lm9yZy51aw== or U3V6YW5uZS5jbGVhckBuZnUub3JnLnVr by Friday 17th April 2015.
The following are among the questions which have been raised:
How is consideration (rent) to be determined?
The code at present underpins consensual agreements between operators and site providers. The consideration and basis on which it should be assessed is a key issue for the reform of the code. There is a strong market rental value out in the market place at present for masts with an average rental of a round £5,000pa. The rent at present is “market value”. Some operators are saying that they are being “exploited” and having to pay ransom rents for the site.
The NFU would like evidence of rents being paid for masts and details of what this includes. For example height of mast, masts located on buildings, equipment and any site sharing or upgrading?
Upgrading and sharing electronic communication on masts?
The NFU does understand and agrees that upgrading and sharing of electronic communications apparatus is important to enable sustainable networks, technical advances and wider service developments.
The code as it exists does not provide operators with any general or automatic power to share or upgrade apparatus. At present you as a site provider in many cases can restrict operators on up grading or sharing without prior consent and an increase in payment (rent) for this.
The draft of the new code is suggesting an automatic right for operators to site share and upgrade and without paying any further consideration (rent). The NFU believes that a consideration should be paid for any upgrade or site sharing.
Therefore the NFU would like examples of where you have negotiated an increase in rent for site sharing or upgrading.
The new code will only consider an upgrade or share if the operator has exclusive possession, if the upgrading and sharing has no more than a minimal adverse impact on the apparatus appearance and if it imposes no additional burden. Additional burden includes anything which has an additional adverse effect on the site providers enjoyment of the land or which may cause additional damage, expense or inconvenience.
Please provide evidence/examples where upgrading or site sharing has led to an adverse effect, damage, expense or inconvenience. Furthermore, we would like evidence where you may have stopped an operator taking access to a mast for maintenance or it may be that you have been inconvenienced by different operators taking access for maintenance and upgrade.
Contracting out of the revised code?
Presently the code underpins what are agreement which have been freely negotiated between parties. When an agreement cannot be reached parties can fall back on the court. Once code rights are in place it is seen to be important that particular provisions of the code cannot be ignored or circumvented.
At present it is not possible for parties to contract out of the principle rights conferred in the code. The draft of the new code still sets out that the parties cannot contract out of the code when agreeing to conferral of code rights.
This means that parties can agree to their own terms of agreement but that parties will not be able to disapply the minimum rights and liabilities. The NFU believes that this should still be included and so parties will not be able to contract out.
Please provide evidence if any as to where not being able to contract out of the code rights has caused a problem.
Transitional arrangements, savings and retrospectivity?
We are being asked by DCMS to look at how arrangements under the existing code will be dealt with taking into account the new revised code. At present there is no provision for dealing with the transition. Normally detailed transitional arrangements are included in the regulations when the revised code is brought into force. We have been asked to consider what transitional arrangements might be appropriate.
The Law Commission has already stated that it does not think that it would be practical or appropriate to simply apply the revised code to existing arrangements. Therefor the government is thinking that it will save the existing code to operate to existing code agreements.
We are being asked though whether there may be exceptional circumstances when it would be better for the revised code to apply retrospectively. Please, if any one has any examples of when this might be suitable, do send us details.
The consultation is also asking us to look at the definition of land and the role of land registration which the NFU will be responding to.