Electronic Communications Code

The Code defines a 'code right', in relation to an operator and any land, as including the right to install electronic communications apparatus on, under or over the land, to keep installed apparatus already on, under or over the land, and to inspect, maintain, adjust, alter, repair, upgrade or operate it. Code rights must be conferred by a written agreement, which under Part 2 of the Code must be in writing, signed by or on behalf of the parties, and must state for how long the right is exercisable and what notice is needed to terminate it; such agreements bind successors in title once made. Part 3 renders void, to the extent they attempt it, any term that prevents an operator from assigning the agreement to another operator or from sharing use of its apparatus with another operator.

Where a landowner or occupier will not voluntarily agree code rights, Part 4 allows the court to impose an agreement, but only if two conditions are met: the prejudice caused to the landowner is capable of being adequately compensated by money, and the public benefit likely to result from the order outweighs that prejudice — the court must also have regard to the public interest in access to a choice of high-quality electronic communications services. Compensation for conferring a code right is assessed on a hypothetical market-value basis, as the amount 'a willing buyer would pay a willing seller for the agreement' in an arm's-length transaction between prudent parties with full knowledge of the transaction.