ELECTRONIC COMMUNICATION CODE and CODE REGULATIONS

Amendments were made to the Electronic Communication Code (Schedule 2 of the Telecommunication Act 1984) by the Communication Act 2003, the amendments being set out in Schedule 3 of the 2003 Act. Clarification of many of the points contained within the Code are now included in The Electronic Communications Code (Conditions and Restrictions) Regulations 2003 which came into force on the 23rd October 2003.

The Code has a number of strings to its bow in as far as those concerned about mobile phone base stations and other such installations are concerned. The ability of the Code System Operator to apply to the County Court to force land owners to take installation onto their property, which is effectively a form of compulsory purchase (note operators were also given compulsory purchase powers in the Communication Act 2003). A system by which those affected by installations can on the one hand apply to the Lands Tribunal for compensation as if the affect on their land was one covered by Section 10 of the Compulsory Purchase Act 1965, and on the other the ability of those that have the interest in, or enjoyment of, their land affected by a telecoms installation, both of these are aspects are dealt with in separate briefings, Objection to Overhead Apparatus (para 17), and Compensation for Injurious Affection (para 16). We deal in this briefing with the generality of the Codes provisions and the Regulations.

Whilst there are many references within the Regulations to planning issues the Regulations themselves do not alter planning law, nor should they be construed as such, albeit in some aspects there are consequences for the planning regime. It should also be noted that much of the Regulations relates to the installation of 'normal' BT and cable phone lines, and therefore of no direct relevance to those concerned with mobile phone installations/base stations. It is important in reading the Regulations to separate the chaff from the corn, on the first reading a negative regime can be implied, when in fact there are more positive than negative measures being implemented.

The first interesting aspect in the Regulations is the clarification of what is meant by an 'emergency organisation', albeit one would normally refer to emergency services as opposed to organisation. This is set out in Regulation 1 - 'Interpretations' as:

"emergency organisation" means any of the police, fire, ambulance and coastguard services and any other organisation which, in the normal course of its activities, may be called upon in an emergency to undertake tasks necessary for:-
1. the preservation of life,
2. the prevention or treatment of injury or disease,
3. the protection of public health, or
4. national defence or the protection of national security;

Whilst the Code sets out what is meant by 'emergency works' (see the Planning Sanity briefing on emergency works):-

"emergency works" in relation to the operator or a relevant undertaker for the purposes of paragraph 23 below, means works the execution of which at the time it is proposed to execute them is requisite in order to put an end to, or prevent, the arising of circumstances then existing or imminent which are likely to cause?
1. danger to persons or property,
2. the interruption of any service provided by the operator?s system or, as the case may be, interference with the exercise of any functions conferred or imposed on the undertaker by or under any enactment; or
3. substantial loss to the operator or, as the case may be, the undertaker, and such other works as in all the circumstances it is reasonable to execute with those works;

These definitions will be of particular importance to those concerned with TETRA (Airwave) installations and development applications, where the operator has been known to claim that as the installation is for the emergency services it is emergency for the purposes of the special provisions within the GPDO, which is a nonsense installations can only be claimed to be an emergency in planning law if they are to replace existing broken equipment.

Code System Operators have statutory undertakers rights, that is they have the right to undertake works on a maintained public highway (para 9 of the Code), including the right to install masts and other infrastructure, such as equipment cabinets, without any formal lease or contract (although permission is required of the Highways Authority see below), and without having to pay any rent or other renumeration, albeit that as a consequence of Orange PCS v Bradford (Valuation Officer) they have to pay rates. Regulation 3(1)(a) now makes it clear that even given those rights the relevant Highways Authority (Scotland Roads Authority) must be consulted "to ensure that any works involving the breaking up of maintainable highways or public roads do not undermine or unduly disturb the highway authorities' or roads authorities' work". And the Code at para 9 requires that the permission as set out in para 2, or an order of the County Court under para 5 are first obtained. Similar provisions apply to Scotland, Wales and Northern Ireland, except that in Northern Ireland 'Special Roads' are excluded. The provisions though are only similar to those of other statutory undertakers such as Electricity and Gas providers. But it does mean that written permission is first obtained, even for general maintenance, particularly if the road requires 'digging up'. Although the term applied is Street Managers, which could for instance as far as a by-way or footpath controlled by a Parish Council mean permission was required from that council.

This at last gives a limited ability for Highway Authorities (Managers) to refuse to allow an installation on a highway (although in practice this would require significant justification), and as such some ability for the public to lobby the Highways Authority. Similarly, there is now a requirement to consult with other statutory undertakers (Regulation 3(1)(c)), such as water, gas and electricity, where there is a potential for the disruption of services by those other undertakers.

Similarly the provisions of Para 2 of the Code applies to all land, thus a Code System Operator that wants to install an installation, or to run a cable, under over or on land, has to first obtain permission from the owner, even where no planning permission is required. Often we hear of operators bullying landowners to take installation, or to run cable over/under their land, in most cases successfully, however the only way this can be achieved is by the grant of permission, or a court order under para 5 (see below). An illustration is the adjacent land owner in Scotland that is having extreme pressure put on him to allow a power cable to be installed across his land, because the operator would otherwise require to install a considerably longer cable along the main highway. This aspect is directly connected to the provisions of Class A of the GPDO whereby prior approval is not granted unless the Code System Operator has a minimum 10 year lease, or it is in accordance with his licence, it is not in accordance with his licence if the provisions of the Code are not met. The Code specifically sets out at para 3 that any right conferred on a Code System Operator to gain rights over land does not extend to obstructing access, which requires a separate written consent.

Whilst Regulation 3(1)(b) sets out the requirement that is already contained within Planning Policy Guidance Note 8 (PPG8) paragraph 9, for consultation with local planning authorities, presumably prior to the installation taking place. Thus for the first time giving a statutory requirement to undertake pre-application consultations, and to undertake the voluntary requirements of Commitment 2 of the so called 'Ten Commitments' see also the Planning Sanity Briefing Paper.

Regulation 3(3) is very interesting, particularly that of Regulation 3(3)(b) which reiterates many of the requirements set out in the Communication Act 2003 (see Planning Sanity Briefing Paper) for the protection of the public health ' "A code operator, when installing any electronic communications apparatus, shall, so far as reasonably practicable, minimise - any potential hazards posed by work carried out in installing the apparatus or by apparatus once installed". This requirement, if interpreted correctly, as referenced against Section 5(3)(d) of the Coms Act, that is for the Secretary of State to make Regulations for amongst other things - "in the interests of the safety of the public or public health" and for OFCOM to take into account "the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection" Section 3(4)(h) of the Coms Act.

Within that context it is arguable that the requirement within Regulation 3(3)(b) takes the issue of emission levels further than those of the requirements of ICNIRP. For instance, it could be argued that they should ensure that any part of the Beam of Greatest Intensity (Stewart Report) should not fall on any place where children and those that are hyper sensitive to emissions spend considerable amounts of time, i.e. sleep, living, play, education and work places. Perhaps we take the requirement of Reg 3(3)(b) too far, in that assertion, but until we put the arguments to the planners, inspectors and courts, then we shall not know what weight they will place on the requirement.

Reg 3(3)(b) also clearly relates to the future effects of installations, and cannot we argue, be limited to solely the decision making process. Therefore much could be made of the many installations that are known to have serious effects on local communities health. But would require reasonable evidence that emission levels are high, and that they are having an effect, that is not overly influenced by other criteria, that though is for others determine, as it is not a planning or legal matter, but a question of fact, to be determined by reference to the relevant technology and expertise of those engaged in research and the technical side of telecoms.

Keeping with Reg 3(3) there are two other aspects to be considered by Code System Operators in their role-out proposals that of "the impact on the visual amenity of properties, in particular buildings on the statutory list of buildings"(Reg 3(3)(a)). and "interference with traffic" (Reg 3(3)(c)). Whilst (a) is dealt with within the normal planning requirements, specifically within PPG8, and (b) is dealt with in as far as the prior approval, prior notification processes are concerned by Article 3(6) of the General Permitted Development Order 1995, nevertheless the provisions open up further arguments in relation to actual site allocation, and strengthens, and restates, the requirements in PPG8 and Article 3(6).

Regulations 3(4) and (5) again reiterates what is contained within the GPDO and PPG 8, (4) in relation to the requirement to "where practicable, shall share the use of electronic communications apparatus", and (5) in relation to the requirement that the operators "shall install the minimum practicable number of items of electronic communications apparatus consistent with the intended provision of electronic communications services and allowing for an estimate of growth in demand for such services". Within (4) then the Code System Operator must justify why any installation that is not on a shared site or mast, has not been installed on such a site. Thus emphasising the aspect already clearly made by the courts (for instance see Jodie Phillips) that site allocation is a material consideration in any decision to site a telecoms installation. Whilst (5) again sets out to indicate the need for site and mast sharing, it goes further in making it clear that each site must be allocated against need, and therefore justification for the specific installation.

There are many loopholes within the telecom planning processes that allow installations to be installed without first obtaining approval from the local planning authority, these installations are generally referred to as 'Prior Notification', as opposed to 'Prior Approval' installations. The name comes from a previous procedure that required that the Code System Operator gave 28 days notice to the local planning authority of an installation being installed, even though no permission was required. That requirement was then removed in 2002, however, under Regulation 5 that requirement has been partially re-implemented, in that one calender months notice must be given for certain types of installation, giving some control over a few loophole installations.

The provisions within Reg 5 are very loose in that any direction of the local planning authority rejecting an installation is subject to the ability of the Operator to say that the requirement is unreasonable, and ignore the direction, and therefore it is assured that this provision will see the issue determined by the courts. The requirement relates in as far as mast installations are concerned to the following apparatus "a cabinet, box, pillar, pedestal or similar apparatus for the installation of which he is not required to obtain planning permission" (Reg 5(1)(b)), or where that operator has not as yet installed any installations in that area (Reg 5(1)(a)). The local planning authority may respond to the notice setting out conditions that they intend to apply, as set out above the operator can reject that requirement by stating it is unreasonable (Reg 5(2)). There are some exceptions to the requirement to notify the LPA, that is for installations in permanent buildings, those for temporary events (see below), and those on high power cable pylons where the current is greater than 6000 volts.

Another very interesting provision is that of Regulation 7, which states that:- *QUOT;A code operator may install electronic communications apparatus in proximity to a building shown as grade 1 or category A in the statutory list of buildings only if he gives written notice to the planning authority and:- (a) the planning authority has not objected in writing to the installation of the apparatus within 56 days of the notice being given; or (b) if the planning authority has previously objected, it has given written notice of the withdrawal of its objection; or (c) in Great Britain, the Secretary of State, after consulting with the planning authority, so directs".

This is a considerable provision, as full planning is required for installations on listed buildings, but not necessarily where they are close by. Though the Regulations do not affect any planning provisions, this is one aspect that effectively does, because arguably the Operator does not have the lawful ability to install the installation even if all planning permissions were applied for and granted, where the installation is in close proximity (ambiguous wording ? what is meant by close proximity?) to a listed Grade 1 or Class A building. Or at least without the approval of the planning authority, presumably on the grounds of the effect on the listed building. Whilst this might not make any real effect upon those installations that require full planning permission or prior approval, other than a greater degree of consideration, they would to all installations that might otherwise by-pass the local planning process.

Under Regulation 10 the Operator is required to maintain his equipment in a safe state, inspect that equipment, and where a complaint is made to the operator that the equipment is in a 'dangerous state' shall take the required action to rectify the problem.

Regulation 14(2) requires that an operator 'shall not' install any apparatus that is "of such a nature, or in such a position, as adversely to affect any plant of an electricity supplier which is already installed". Might have a limited effect, but could affect some installations that are in streets, where electricity supplies are carried underground, nevertheless worthwhile as an argument in such cases where the effect is obvious that they do not have Code System Powers in relation to such installations, and therefore developments might be deemed unlawful.

There is a general planning provision (as opposed to specific mast policy) that any temporary development of 28 days or less in any 12 calendar months does not require planing permission, although some forms of developments such as markets that right has been reduced to 14 days. This means in as far as telecoms are concerned that installations can be put up for the statutory 28 days. Regulation 15 specifically gives the power to operators to install 'poles and lines', not masts for both special events and to deal with emergencies, providing notice is given to the LPA. That aspect clearly does not apply to base stations, or antenna, but the 28 day criteria would apply, but to come within that provision they would have to be genuinely of a temporary nature , perhaps mounted on a vehicle or trailer.

Regulation 16 is a partial way forward to operators being required to have insurance provision, albeit this provision only relates to the operators potential liability in respect of developments that are on or under public highways, and the liabilities to maintain, or remove apparatus if the operator is no longer able to undertake his obligations, such as going bankrupt. We live in hope that the this requirement will be extended to a general requirement to indemnify against public liability.

The final aspect of the Regulations that require comment is that of Reg 17 which requires the operator to cooperate with both the local planning authority and the highways authority in putting into place guidelines, and the operators must give copies of the guidelines to OFCOM. This is useful in putting pressure on LPAs to introduce supplementary planning guidance, and building regulation style guidelines, for instance on the colour, and planting schemes that an LPA might consider appropriate, as well as technical aspects of the development it self, such as fixings for antenna and base construction.

Turning now to those aspects of the Code that we have not dealt with, para 1 has a useful set of definitions, particularly that of describing what is meant by Electronic Communication Apparatus:-

'electronic communications apparatus' means
1. any apparatus (within the meaning of the Communications Act 2002) which is designed or adapted for use in connection with the provision of any electronic communications network;
2. any apparatus not falling within paragraph (a) which is designed or adapted for use in connection with the running of an electronic communications network;
3. any line;
4. any structure, pole or other thing in, on, by or from which any electronic communications apparatus is or may be be installed, supported, carried or suspended; and references to the installation of any electronic communications apparatus are to be construed accordingly;

Whilst 'line' is stated to mean:-

'line' means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service;

Any right that is held against a landowner whether granted or forced shall be entitled to compensation, and his legal expenses of pursuing that claim from the Operator. The Lands Tribunal is the forum for such claims, but an owner might be better able to seek compensation direct with the operator if that is the only possible outcome, we set this out in our separate briefing paper, see paras 4 and 16 of the Code.

As already stated para 5 of the Code allows an application to be made to the County Court to force a landowner to take an installation. The process if agreement cannot be reached by negotiation requires the Code System Operator to serve on the landowner/occupier 28 days notice. At the end of that 28 days period the operator may then apply to the Court to uphold the notice, but in doing that the court must take into account the following:-

(3) The court shall make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order-
1. is capable of being adequately compensated for by money; or
2. is outweighed by the benefit accruing from the order to the persons whose access to an electronic communications network will be secured by the order;
and in determining the extent of the prejudice, and the weight of that benefit, the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network.

It is our understanding that this process has never been used, but we know of numerous instances where the procedure is used as a rod to force landowners to have installations. But what is never made clear is that as a consequence of Section 118 of the Communication Act 2003 OFCOM have the ability to fund the legal expenses of the landowner. However, careful argument in relation to court costs could be made so that irrespective of the outcome costs should be paid by the Operator. The requirement is that reasonable compensation should be paid to the landowner that is forced by the court order to take the installation, therefore it is inconceivable that except in the rarest of cases that the landowner should pay the costs if the operator get his order.

A reverse order can be obtained under para 21 where an operator has an installation on his land that is no longer required for telecoms purposes or for any other reason the landowner occupier may serve the 28 days notice, and if the operator fails to respond within the 28 days (serves a counter notice), then the notice becomes absolute, and cannot be challenged. Otherwise the County Court can order the installations removal. Where the Operator fails to remove the apparatus the landowner can apply to the Court for an order allowing him to remove the apparatus himself, and then to bill the operator for the cost involved, and even allows the landowner to sell the apparatus to recover any cost involved in its removal.

Paragraph 17 of the Code allows for landowners or person with an interest in any land which:-

1. any land over or on which the apparatus has been installed, or
2. any land the enjoyment of which, or any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus,

Can apply to the County Court for an order requiring its removal, we fully set this out in our briefing paper. The basic process being that within 3 months of the physical completion of the installation notice of objection is served on the Code System Operator, who then has two months in which to respond, if they fail to respond, or fail to undertake the requirements of the objection, then at the end of the two months the objector has another two month period in which to lodge an application to the County Court. The Court may then if it feels the objection is justified order the installations removal.

Under para 18 of the Code it is a criminal offence for the Operator NOT to affix a notice of completion of the main piece of apparatus. But due to a nonsensical finding of the Court of Appeal the notice of it self is of no practical purpose, it is in our view clearly linked to para 17, but the Court said no. Therefore the operator can be fined for failing to affix a notice that means nothing.

Para 20 of the Code allows anyone with an interest in the land to apply to have apparatus altered if it is likely to interfere with any proposed improvement to their land. Again this allows for the serving of a 28 day notice, and for an application to be made to the County Court.