Infrastructure Bill [HL]

Written evidence submitted by the National Farmers Union (NFU) (IB 45)

Evidence for Infrastructure Bill House of Commons Committee Stage: Electronic Communications Code

The National Farmers’ Union of England and Wales (NFU) is the voice of British farming. We provide professional representation for our 55,000 farming members. In addition we have 32,000 countryside members with an interest in farming and rural affairs.

This is a response by the NFU to the Notices of Amendments given in the Infrastructure Bill which was published on the 9th January 2015 and of which we were notified of by Kellie Hurst from the Department for Culture, Media, and Sport (DCMS). The NFU gave a detailed response to the consultation carried out by the Law Commission to review the code in 2012. We also attended a meeting organised by DCMS to discuss the issue of ‘ransom’ rents which had been raised by the Operators to DCMS. The NFU was expecting to be able to respond to the draft notices of amendments before it was included in the Infrastructure Bill. Therefore the NFU was disappointed by the sudden notification from DCMS last week, which means that we are now not able to consult with our NFU members.

The NFU though is very pleased to see that the notices of amendments at paragraph 23 highlights that consideration for a site must be an amount or amounts representing market value of the relevant person’s agreement to confer or be bound by the code right.

The NFU would like to raise concerns over the following wording that has been included in the notices of amendments to the "Electronic Communications Code", in particular the following paragraphs:

· Paragraph 16 Power for the Operator to Upgrade or Share Apparatus

(1b) share the use of any such electronic communications

(3) second condition - sharing have no adverse impact on its appearance or no more than a minimal adverse impact on its appearance

(4) third condition that the upgrading or sharing imposes no additional burden on the other party to the agreement

(6) Any agreement under part 2 of this code is void to the extent that-

(a) it prevents or limits the upgrading or sharing in a case where the conditions in sub –paragraphs (2) to (4) are met, of any of the electronic communications apparatus to which the agreement relates, or

(b) it makes upgrading or sharing of such apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).

· Paragraph 23 Consideration

(4 ) The market value must be assessed on the assumption that –

(a) there is more than one site which the operator could use for the purpose for which the operator intends to use the land in question (whether or not that is actually the case),

(b) paragraphs 15 and 16 ( assignment of code rights and upgrading and sharing of apparatus ) do not apply to the code right or any electronic communications apparatus to which the code right could apply.

It is our understanding that going forward an operator who has entered an agreement will be able to assign and site share on the site. Furthermore from the wording that has been drafted at Para 23 (4) b) that no value can be given to the permitting of assignment, site sharing or upgrading of equipment. Therefore, no rent will have to be paid for assignment or site sharing. So if there is a site and the operator highlights that site sharing will take place somehow a value has to be reached for the site as if no site sharing was taking place even though it is.

This cannot be correct and we ask for the Committee to consider that the value of a site is calculated on what is actually happening on the site as has been the case in the current market. The NFU in its response to the Law Commission on site sharing in 2012 stated the following:

The NFU recognises that sharing apparatus can reduce infrastructure costs and the visual and environmental impacts of apparatus, and so is generally supportive of operators sharing apparatus. However, the NFU believes that it is important that apparatus sharing should be the subject of agreement and negotiation between landowners and operators, and there should not be a general right for operators to share equipment. Operators and landowners should be able to agree the extent to which sharing will be permitted, and what level of compensation, if any, should be payable when apparatus is to be shared.

Where agreements do permit sharing to take place, compensation provisions should be incorporated into the agreement so all parties know where they stand at the outset.

Contractual terms restricting or prohibiting apparatus sharing should not be void. The parties should have the freedom to negotiate agreements on terms of their choosing. Any restriction on apparatus sharing would be reflected in the level of compensation payable, so making such terms void would have an unfairly prejudicial impact on landowners.

The NFU believes that compensation should always be payable when sharing apparatus occurs unless the owner agrees otherwise.

The NFU would ask the Committee to consider further amendments to these sections to allow the market for sites with site sharing to function correctly.

Paragraph 24 – power to amend paragraph 23

It is our understanding that the Secretary of State will be given powers to amend paragraph 23 and so will be able to change the basic approach and that it will not be assessed having regard to the use which the operator intends to make of the land in question.

The NFU feels that this paragraph should not be included and is strongly against the Secretary of State being given this power. It is not necessary for this paragraph to be included as already within the market there are different rents being paid for different sites taking in to account the site. This includes sites for masts in very rural locations. The NFU has given its full backing to the Mobile Infrastructure Project (MIP) and has helped one of the operators of this project with its heads of terms to be agreed with a site provider. As the market is so strong on rents it was felt that it was not necessary to get involved with any advice on minimum rents for MIP.

Part 16 – Enforcement and Dispute Resolution

It has been noted from these notices of amendments that the procedure for enforcement and dispute resolution is still firstly by a court order from the county court. The NFU in its response to the consultation carried out by the Law Commission highlighted the following when it was proposed that the revised code should no longer specify the county court as the forum for most disputes:

The NFU is in complete agreement that the revised code should no longer specify the county court as the forum for most disputes.

The NFU further highlighted the following:

The NFU would like to see the Lands Chamber of the Upper Tribunal and, if appropriate, the Property Chamber of the First–Tier Tribunal to be the forum used for dispute resolution. It is a forum that already works well within the agricultural sector.

However, if the dispute only relates to the value of the compensation payable, the NFU believes that it would be more appropriate for the dispute to be resolved through arbitration.

In every case the dispute forum has to be effective, appropriate, proportional and accessible.

Therefor the NFU would like to see that the county court is not the first choice and is in agreement with Paragraph 92 as worded that the Secretary of State may by regulations provide for a function be exercisable by the First-tier Tribunal and Upper Tribunal.

The NFU hopes that the Committee will see that further amendments are needed to this draft of notices to amendments to the "Electronic Communications Code" as in included in this Infrastructure Bill. The NFU has other concerns with the amended notices and would like to see further modification. The Law Commission highlighted back in 2012 how important electronic communication networks are and the difficulty of them being located upon private land. Therefore the electronic communications code has to strike the balance between rights and interests of landowners and network operators. It is very important that the amended code does achieve this and as it stands the NFU feels that this has not been achieved.

January 2015

Prepared 15th January 2015