Streetworks and Code Powers

By Huw Saunders of Catalyst Communications Consulting

Constructing an NGA network on private land seems relatively straightforward – reach agreement with the landowner and JFDI! Caution should be exercised to ensure that the rights to put equipment into the property are maintained in the event of a change of ownership (by entering into an appropriate “wayleave agreement” or “easement” [insert link to wayleaves page]) but a number of legal precedents are available and bodies such as the Country Landowners Association encourage their members to adopt a similar approach to these types of contracts. In addition, there needs to be a clear consideration of how the installation can affect the landowners’ normal activities, and vice versa, and the normal considerations of “health and safety” and liability insurance etc, but these should be standard issues for any experienced contractor.

How do you go about doing the same thing in public land, such as a highway (which includes pavements and verges by the way)? In simple terms, you could proceed in exactly the same manner – reach “commercial” agreement with the relevant “property owner” and then undertake the work, bearing in mind the need to meet the requirements of all of the relevant legislation, such as the New Roads and Street Works Act (NRSWA), ensuring that you don’t interfere with utility assets and other infrastructure already in place, and that you comply with the specified standards of work and restitution. This “Section 6 permit” approach to minor schemes is perfectly feasible, but does require the co-operation of the relevant body (either a local authority, or the Highways Agency) and, again, an experienced civil engineering contractor.

However, if you don’t want to be reliant on “goodwill”, you can apply to be granted use of the Electronic Communications Code. This piece of legislation dates back from before telecoms liberalisation, although it has been modified from time to time, most obviously in the Communications Act 2003. Essentially, the Code enables communications providers to construct infrastructure on public land (streets), and to take rights over private land, either with the agreement of the landowner or by applying to the County Court or the Sheriff in Scotland. It also conveys certain immunities from the Town and Country Planning legislation in the form of “Permitted Development”. In addition to providers of electronic communications networks the Code is also available to those who wish to construct conduits to be made available to network providers.

The Code is granted to network providers by Ofcom, by a direction made following a public consultation and consideration of the responses to that consultation. All that is basically required is that you show Ofcom that you have a legitimate need for the Code and that you have the wherewithal to use it. The Code is not the most user friendly pieces of legislation, but the Ofcom site explains some of its uses and also provides templates for the “notices” that are required to be served on the relevant highways authority etc. Again, the advice and experience of an established contractor can save a lot of problems.

One sometimes overlooked aspect of the Code is the requirement that Code operators ensure that sufficient funds are available to meet any specified liabilities, and that they provide Ofcom with a certificate on 1st April each year that needs to state, amongst other things, that sufficient funds have been put in place,  and needs to be accompanied by copies of any insurance policy, bond, guarantee or other instrument which will provide for the funds if the Code operator ceases to exist. This requirement came about because of the legacy of failed companies in the “dot com” bubble of the early “Noughties”, who left decaying and potentially dangerous apparatus in place, that the local authorities did not have the wherewithal to remove.

 

Huw Saunders has been in the Telecommunications industry for over 30 years working for equipment vendors, telco/service providers and a leading specialist consultancy. He has in depth and widespread experience of all aspects of telecoms services with an emphasis on policy, strategy, business development and service deployment. He has particular expertise in regulatory issues, with extensive involvement with the development of the UK and European regulatory framework and its application from the “Duopoly Review” of the early 90s, through the various EU Reviews of their Regulatory Framework and Ofcom’s Telecoms Strategic Review. Due to the unique nature of the businesses he has worked for, this experience extends from consumers to the largest business customers, from both an incumbent and new entrant perspective, including services provided to and via other carriers and service providers. His consultancy clients have been in the UK, other European states and Asia, and have included incumbent telcos, new entrants and regulatory authorities. In the UK he has been on the Board of NICC, NGNUK and ATVOD, and has recently been the industry co-chair of BT’s Consult 21 Steering Board, and much of his recent work has focussed on “Next Generation Network” and consumer issues.

 

He has had long term involvement in the public sector led South Yorkshire Digital Region “next generation broadband” project. This involved liaison with the lead public sector agencies over a 5 year period, coordinating the public procurement tender response work as part of a bidding consortium and negotiating with key project partners. This project represents the largest ever commercial contract won by his them employer with total revenues of over £100 million over the project’s life.