Digital Economy Bill

Written evidence submitted by the National Trust (DEB 11)


1. The National Trust supports the Government’s commitment to ensuring access to high quality communications networks for everyone, wherever they live or work. We believe that this can, and must, be done in ways that do not harm our most sensitive landscapes. With regards to Part 7 of the Bill. it is our contention that the Government is yet to make a strong enough case for making the current temporary permissive planning regime permanent in protected areas such as National Parks and Areas of Outstanding Natural Beauty. With regards to the proposed new Electronic Communications Code, we propose a number of small changes to help safeguard sensitive landscapes in general, and National Trust land in particular.


2. The National Trust welcomes the opportunity to respond to the Digital Economy Bill Committee’s request for evidence. The National Trust recognises that communications networks are an integral part of today’s society, enhancing the ways people, businesses and communities connect with each other. It is clear to us that improving communications networks could have a widespread positive social and economic impact and that this might particularly be the case in rural areas.

3. Improving rural broadband and mobile phone coverage is an important strategic priority for the National Trust. We have invested heavily through our Back to Basics project in our own networks, which includes a £15m investment in broadband and other upgrades, and £40m on our Systems Simplification Programme. Despite our own investment, our growth and productivity is constrained by places with slow broadband. 40% of the places we care for experience slow networks. As a major landowner we want to work with the Government, local planning authorities, communications providers and rural communities to find good, balanced solutions to help achieve our twin goals of fast broadband and good mobile coverage at all our places and communities whilst fulfilling our duty to care for and protect our places.

4. The benefits of expanded communications networks must continue to be weighed against any potentially negative impacts, particularly on sensitive landscapes. The growth of the nation’s communications networks can and should be achieved in a balanced way, taking into account a variety of interests. Due consideration must be given to the voices of landowners and the wider public, in decisions that affect land, particularly over land with historic, natural or social value, and protections given to special places of natural or historic interest should not be diminished. As a signatory to the European Landscape Convention, the UK has undertaken to recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of our shared cultural and natural heritage, and a foundation of our identity.

5. The National Trust makes the following points by way of response to the Committee’s call for evidence. Our comments in this submission focus on Part 7 of the Bill, and the proposed new Electronic Communications Code.

Part 7

6. The Growth and Infrastructure Act 2013 introduced a more permissive regime for installation of above ground fixed-line broadband electronic communications apparatus (including cabinets, poles and lines). The new regime extended the categories of lines which could be deployed overhead (effectively suspending the general requirement to put new lines underground). Further, it only required an operator to notify and consult planning authorities, and removed need for planning permission, conservation area consent and the need for approval before installing in proximity to listed buildings. The new regime also dis-applied protection to National Parks, the Broads, limestone placement area, AONB and to National Trust land (The National Trust was previously a ‘relevant body’ and we could object). Finally, it also allowed operators to install fixed-line broadband service lines without having to give notice to those bodies. Following the 2013 Act a voluntary code of practice was produced on the siting of infrastructure, to ensure an agreed set of principles were put in place for sensitive landscape areas.

7. The regime was to apply for a limited period of five years via ‘sunset provisions’. Section 7 makes this temporary permissive regime permanent. This is a significant change. The measures in the 2013 Act represented a weakening of protection for our finest landscapes, and an end to the general requirement that new lines to be placed underground in these sensitive areas. It is not immediately clear from the Bill, explanatory notes or Impact Assessment what evidence the Government has gathered on the effectiveness of this more permissive regime in terms of rollout, or its impact of the environment. The Impact Assessment [1] states:

‘Government understands that these changes, together with complementary changes to the planning framework, have proved successful in speeding up the process of superfast broadband rollout and reducing the costs of deployment for communications providers. Given the success of the reforms in reducing costs, it is possible that making permanent the current requirements could encourage further investment, thereby helping to meet the government’s objective to extend superfast broadband coverage to 95% of homes and businesses in the UK by the end of 2017. The government therefore wants to remove the sunsetting requirement.’

8. This statement is vague, and it is not clear what the strength of the evidence is to support the claim that this more permissive regime has been successful in speeding up the process of superfast broadband rollout and reducing costs for providers. Our own research suggests that the Government did carry out a review of the code of practice in 2015. A Written Ministerial Statement (WMS) of March 2015 [2] explained that the review gathered feedback from the members of code of practice working group on its effectiveness. Some of these groups reported that the Code appeared to be working well, but some instances of non-compliance were also reported. Overall it appears that participation in this feedback exercise was low. The WMS also reports that BT state 500,000 additional premises have access to superfast broadband as a result of the more permissive regime, but this statement is not well supported by evidence, and it is not clear that these premises could not have been served under the previous approach.

9. We support the Government’s ambitions around superfast broadband rollout, but it is important to remember that the Conservative manifesto also commits the Government to ‘maintain protections for our Areas of Outstanding Natural Beauty, National Parks, Sites of Special Scientific Interest and other environmental designations’, that Section 85 of the Countryside and Rights of Way Act 2000 contains a general duty on all relevant authorities to ‘have regard to the purpose of conserving or enhancing the natural beauty’ in these areas, and the National Planning Policy Framework requires ‘great weight’ to be given to conserving landscape and scenic beauty in designated areas. The Government’s more general commitments to deliver sustainable development that integrates social, economic and environmental aims is also relevant here. We must also remember that these areas are significant economic assets, because of their natural, unspoilt beauty and historic significance. The direct, indirect and induced impact on the economy from natural and built heritage tourism is £26.4bn.

10. During the debates on the 2013 Act in the House of Lords, peers raised concerns about the size and height of broadband cabinets, and the potential for new overhead lines and poles to ‘pepperpot’ the landscape and have a cumulative and chilling effect on the rural economy. It would be helpful to see a more comprehensive assessment of what the visual impact of these reforms has been since 2013.

11. In summary, it is not clear from the Impact Assessment that the Government has gathered sufficient evidence to ensure this more permissive regime is delivering for the environment in general, and protected areas specifically. There is also insufficient evidence presented in the Impact Assessment that the new regime is delivering significant benefits for providers, as is claimed. Overall, it is our contention that the Government is yet to make a strong enough case for making this more permissive regime permanent in protected areas.

Electronic Communications Code

12. We welcome the emphasis in past Government consultations that the Code underpins consensual agreements between Code operators and site providers. We have highlighted in responses to earlier consultations that we did not consider that expansion of the Code rights to include wider rights for operators was necessary. We consider that those currently available to operators enable them properly to establish and operate communications apparatus on private land.

13. We note that the proposed Code largely follow the recommendations of the Law Commission in 2013 but in certain instances go further, broadening the rights of operators. The specific concerns set out below have been highlighted to Government in response to previous consultations on the Code. We regret that to date these have not been addressed.

Paragraph 16 - Upgrading and sharing apparatus

14. In our view, issues such as upgrading or sharing apparatus should be dealt with by negotiation between the Code operator and the site provider, allowing due consideration to be given to the nature of the site and its use. While the Law Commission took a different approach, recommending a general right to upgrade or share, this was on the basis that the sharing or upgrading could not be seen from outside the structure and imposed no burden on the site provider. The proposed new Code goes further than this. The condition proposed is that "any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance".

15. We are concerned that the balance between ensuring the sustainability of operators’ networks and the need for landscape protection, as recognised by the Law Commission in its initial proposals, has been shifted and the alteration of apparatus may have negative impacts on landscape. It is not clear from the proposed new condition how ‘minimal adverse impact’ is to be defined, and the wording as it stands is open to interpretation and therefore confusion. We would welcome more clarity from the Government on this point. While individual alterations to apparatus may be minor, there is also the possibility that, over time, additional alterations could lead to greater negative impacts across the landscape.

16. Our particular concern is that this change could have an adverse effect on National Trust land. To deliver our core purposes of protecting land and buildings of natural beauty and historic interest, Parliament has granted the National Trust special rights to place legal controls on land. In particular the National Trust can declare land that we own ‘inalienable’, which means we cannot sell, give away or mortgage that land. In light of the importance that Parliament attaches to National Trust land, we consider that the approach proposed by the Law Commission should apply to National Trust land. We would suggest wording is inserted along the following lines or similar:

"Where the apparatus is on, under or over any land which the National Trust owns or has any interest in, any changes to the apparatus as a result of the upgrading or sharing cannot be seen from outside the structure."

Paragraph 20 - Test applied by court when imposing agreements on landowners

17. The proposed new provision proposes that a court may make an order imposing an agreement where two conditions are met (paragraph 20(1) of the revised Code). These are that the prejudice caused to the relevant person is capable of being adequately compensated by money and that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

18. In considering whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services (paragraph 20(4)). Currently, the court must consider all the circumstances, and the principle that no person should unreasonably be denied access to electronic communications networks. In light of our concerns regarding consideration of landscape impacts, and the UK’s obligations under the European Landscape Convention, we propose an addition is made to paragraph 20(4) to the effect that in considering whether the second condition is met the court must also have regard to: "the need to protect landscape and scenic beauty". We suggest that a similar addition is made to paragraphs 47(6) and 48(6).

Paragraph 30 - Termination and modification of agreements

19. While generally seeking to avoid the installation of apparatus on our land which is visually intrusive, the National Trust recognises that there will be instances where apparatus may either have no significant visual intrusion or where the least environmentally damaging location may be on National Trust land, and may enter into Code agreements on that basis. The grounds set out in paragraph 30 are the only grounds on which Code agreements can be brought to an end early. Code agreements are likely to be in place for a number of years, during which period the landscape in which the apparatus is kept may be subject to considerable change. If this occurs, a site on National Trust land may no longer be the least environmentally damaging location for the installation, and in such instances we would like to have the opportunity to revisit the agreement. We suggest the addition of the following to paragraph 30(4):

20. "(e) where the Code agreement concerns any land which the National Trust owns or has any interest in, that the land is no longer considered by the National Trust to be the least environmentally damaging location for the installation."

21. With regard to the ground in paragraph 30(4)(a) resulting from substantial breaches by the operator of its obligations, we would welcome guidance on what would be considered ‘substantial’.


22. The National Trust is supportive of the Government’s aim of accelerating the rollout of superfast broadband, and increasing mobile connectivity, and we are investing in our own networks to support this activity. We believe this programme of work can and must be delivered in a way that doesn’t harm our special landscapes. We hope the Committee will question the Government on how it intends to protect our valuable landscapes as it delivers its ambitions for the digital economy.

About the National Trust

23. The National Trust is a charity founded in 1895 by three people who saw the importance of our nation’s heritage and open spaces, and wanted to protect them for everyone to enjoy. More than 120 years later, these values are still at the heart of everything we do. We look after special places throughout England, Wales and Northern Ireland for ever, for everyone.

24. We look after coastline, forests, woods, fens, beaches, farmland, moorland, islands, archaeological remains, nature reserves, villages, historic houses, gardens, mills and pubs. We restore them, protect them and open them up to everyone. For the Trust, conservation has always gone hand-in-hand with public access. We welcome everyone to explore:

· 775 miles of coastline

· Over 248,000 hectares of land

· Over 500 historic houses, castles, ancient monuments gardens and parks and nature reserves

25. Last year saw a record 22.5 million visits to houses and gardens and an estimated 200 million visits to countryside and coastal places.

October 2016


Prepared 10th October 2016