Land: internet access
Bringing broadband up to speed
9 August 2013
A thorough review of the Electronic Communications Code, considering whether and how it should be modernised, is a welcome and timely development, say Sarah Fink and Chris Yiu
In our report The Superfast and the Furious: Priorities for the future of UK broadband policy, we argue that UK government should see out its current spending plans to extend superfast fixed broadband to 90% of the country, to accelerate the roll-out of 4G wireless networks, and to deliver on the 2Mbps universal service commitment for 2015. However, once this programme is completed, the priority should be on empowering consumers and businesses to make best use of the internet.
In addition to a focus on effective and sustainable competition, ensuring that any revision of the Electronic Communications Code (ECC), and any further reforms to the planning regime, enable efficient roll-out of broadband infrastructure is integral to our recommendations.
As part of the wider review of the UK communications framework, the government referred the ECC to the Law Commission for review, in order to consider whether and how it should be modernised. The vision is to have a code that enables electronic communications network providers to construct infrastructure on public land or take rights over private land sufficiently. The Law Commission published its recommendations in February this year with an emphasis on addressing the complexity and lack of clarity in the out-of-date code.
The Law Commission's view is that it may be necessary and appropriate in some cases to have a legal means of compelling landowners to grant access to their land
During the course of our research, some organisations suggested that landowners are accustomed to water, gas and electric companies looking for access to their land. Although public attitudes are shifting towards seeing broadband as more similar to a traditional utility (we found that four out of five people think every household should have access to the internet), landowners appear to have a different relationship with big telecommunications companies and might see this process in terms of how much they have to gain. Some suggested that landowners are more willing to work with, or are at least less hostile towards, community broadband programmes.
The Law Commission’s view is that it may be necessary and appropriate in some cases to have a legal means of compelling landowners to grant access to their land. Consistent with our findings, the commission points out that it spoke to various operators that have experienced great difficulty in agreeing access or price and end up either abandoning the preferred route or paying an unrealistic price to the landowner. The prevailing view, noted by the Law Commission, is that the financial award payable by electricity, gas or water providers following the acquisition of a new right is based on the value of the land or any damage caused (there are also cases where compensation for disturbance is provided). It recommends that “landowners should continue to be paid a market price for the right to use land, but the revised Code should provide a definition of market value that is familiar to valuers and conforms to their professional standards”.
Poor procedures and delays are not just a problem for landowners and network providers but for the public as well, due to the delay of services. The Law Commission states that it will not be able to take control over the time taken, but should facilitate a better process.
Broadband providers could learn from the processes of other utilities. Water providers may lay, inspect, maintain, adjust or repair pipes if reasonable notice is given to landowners. Permission is not needed and landowners do not have the right to object to the works, but the Water Services Regulation Authority must investigate any complaints. There is no test to consider before a water pipe is installed, although a financial sanction not exceeding £5,000 may be applied if the water provider inappropriately exercises these powers or causes loss or damages.
Poor procedures and delays are not just a problem for landowners and network providers but for the public as well...
Electricity providers may apply to the Department of Energy & Climate Change for the grant of a wayleave where they cannot secure an agreement with the landowner, although the overall process usually takes at least a year and is uncertain. However, it does set out a test where the electricity provider must show it is necessary or expedient to install and keep installed an electric line through or over land.
From our perspective, there is a need for stronger rights for operators under the code, alongside rights for landowners, on the grounds that communications infrastructure should be viewed as a public good, in much the same way that utilities already are. The code should provide clear steps to facilitate faster agreements between parties because delays and lengthy processes are the overarching problem in deploying communications infrastructure efficiently. In addition, finding an acceptable way to determine compensation for landowners, based primarily on the value of the land and cost of access, will also be important.
The intricacies of obtaining planning permission for network infrastructure can still be a bottleneck for the deployment of improved broadband services. For mobile network infrastructure, we know that the approval rate for new base stations is currently running at around two in three. Where these applications are rejected and appealed, the win rate is also around two in three (against one in three across all appeals). In practice, much of the proposed infrastructure does eventually obtain permission, but often only after a far more lengthy process than is necessary.
A key driver in this sort of scenario is the lack of consensus on the interaction between improved communications networks and connectivity and the impact this may have on neighbourhoods and the local environment. Our research shows that the public is, to all intents and purposes, split 50:50 on whether communications or the local environment should take priority. In the meantime, many councils talk up their desire for better connectivity and broadband without having properly developed mechanisms to efficiently navigate this through the planning process.
We therefore propose the introduction of a pro-communications planning regime for councils that want to make faster progress on connectivity. This would set out a basic framework for industry and local authorities to sign up to. Industry might be required to give stronger assurances about the speed of works and explain the impact on the local environment and benefits to residents and businesses (and perhaps post a bond if further commitment is needed). In exchange, participating councils might give assurances of a presumption in favour of development and void classes of objections that are known not to stand up to scrutiny.
There may also be scope to make better use of public-sector assets to speed up the deployment of communications networks
Councils would not be obliged to adopt such a regime. Yet, for those that want to make faster progress on communications network rollout, this could be an important tool for attracting investment and industry focus. There are parallels with the Google Fiber project in the US, where competition between cities to attract investment has resulted in local legislators clearing the way for rapid deployment of next-generation networks. An approach of this sort would be in line with previous Policy Exchange research on planning reform, which has called for a more liberal and competitive system.
There may also be scope to make better use of public-sector assets to speed up the deployment of communications networks. For mobile networks in particular, the requirement to put infrastructure above ground (ideally at good vantage points to maximise coverage) can lead to some of the most protracted objections to development. Industry experts are most likely to have the best technical perspective on the optimal location of masts and related infrastructure but getting on with deployment in a good enough location may be preferable to spending too long securing the very best location.
On this basis, some local authorities may find themselves in an interesting situation. Particularly in smaller towns, council buildings or other public structures may be attractive sites – relatively tall and central, with reliable power infrastructure. Councils with an appetite for imaginative approaches to speeding up communications network roll-out should consider whether and how their own assets could be used as part of the solution. It will not always be possible to site a mast on the roof of a council building or hang equipment off existing structures, but where it is viable it may prove a faster route to a good enough solution than trying to break a planning deadlock between multiple parties and
a private landowner.
As with our proposals on fast-track planning, and in line with the government’s localism agenda, this is not a measure that Westminster should be mandating. Some councils may legitimately conclude that this approach is not appropriate for the local environment or population. But for others, the government may do well to nudge local leaders to think more creatively about leveraging their assets to accelerate better local connectivity.
A thorough review of the ECC was long overdue, and the Law Commission has made several welcome suggestions, but there is still more to be done as the government considers them. In addition, an improved planning regime and the potential use of public spaces will also help everyone involved to make progress.
Sarah Fink is a Research Fellow at the Digital Government Unit and Chris Yiu is Head of the Digital Government Unit at Policy Exchange, an independent, non-partisan educational charity seeking better public services, a stronger society and a more dynamic economy