Rights of way for electronic communications: Is a local government permit required for public land? Which conditions can be set by the government? How long does it take to acquire a permit?

10 October 2012

 Belgium

The public authorities are entitled to request for a modification of the infrastructures on their domain. The cost of such modification will be borne by the operator of the network when the modification is imposed for one of the following reasons: (i) to ensure public safety, (ii) to preserve the nature and the urban environment, (iii) in the interest of the roads or waterways and (iv) as a result of the changes caused by the land owners of the adjoining properties. In all other cases the modifications shall be paid by the authority that imposes the modification.

 Czech Republic

Generally there is no specific regime in connection with public land. In all cases the proper building/construction permits need to be granted by the respective building authority to the operator prior to placement/construction of the network. An administrative fee must be paid together with the application for the building/construction permit.

There is just one type of regulation in respect to rights of way and private land owners in the Czech Republic. This is contained in the Czech Civil Code and the respective provisions of the Czech Telecommunication Act.

 Finland

The Finnish Communications Regulatory Authority may impose an obligation on a network operator with significant market power to relinquish access rights to its mobile network to service operators, an obligation to connect a communications network or communications service to the communications network or communications service of another telecommunications operator (interconnection), technical obligations or conditions on the use of the obligation to relinquish access rights that are necessary and to arrange national roaming.

 France

Regarding public road domain, the private occupation is subject to an encroachment permit (permission de voirie, article L47 of the French Code of Post and Electronic Communications, hereafter: “CPCE”) delivered by the competent authorities which is:

  • the prefect, in case of national roads and highways;

  • the concessionaires in case of highways operated under concession;

  • in other cases, the executive body of local authority or inter municipality cooperation which run the domain (1).

The authority can obstruct the right of way only in order to ensure the compliance with essential requirements, the protection of the environment and the town planning rules. Unless the occupation is incompatible with the assignment of the public land, operators are free to occupy the public highway land by installing equipments necessary for the operation of public networks.

The authority shall deal with the request within a maximum period of two months from the receipt of an application accompanied by complete specifications.

Regarding other public domains, the private occupation is subject to an agreement (convention, article L46 of CPCE) which is established in a transparent and non-discriminatory conditions between the operator and public concessionary or managing authorities.

The private occupation can not be inconsistent with the assignment of domain or available capacity.

 Germany

The public right of way has to be granted by BNetzA through a formal permit upon written application of the person entitled to such right (owners or operators of public telecommunications networks). This procedure is required because the federal structure of Germany made it necessary that the German federal entity holds the right of way (against the federal states and local communities), which is then transferred by separate act to the entitled private applicants. If the application is complete, i.e. the applicant must establish that he is technically and financially capable as well as generally reliable to exercise the right of way, the permit must be granted within six weeks. Such permit can be granted on a regional or nationwide basis, depending on the scope of application.

With respect to the individual construction work required for the installation of the telecommunications infrastructure, the competent local (road) authority typically requires application for a trenching permit to carry out the works. However, such authority may not question the right of way already granted by BNetzA (see above paragraph), and the required trenching permit may only set generally accepted technical conditions for the construction works and technical configuration parameters. Thus, the construction permit may only regulate the “how” and not the “if” of the construction.

 Italy

In general terms for public land the right of way in favour of the authorised telecommunications operator must be granted by the competent public authority. The extension of such right and the rules governing such rights of way must be disciplined by the terms of a specific “convention” to be drafted and executed by the operator and the public body.

 Netherlands

Yes, a local government permit is required in those cases. The local government has a coordinative task regarding the works associated with the placing, moving and removing of cables and can set all relevant conditions implied within this task.

 Poland

Yes, there is a local government approval required for public land. Usually the approval specifies the conditions that have to be fulfilled by a utility company in order to conduct the construction works.

The time frame to acquire such an approval varies – usually it takes a couple of weeks, but it can take up also to a couple of months.

 Spain

A local government permit is required when the rights of way concern local public land. Relevant conditions are established by means of local regulations based on the general principles referred to in answer to question 1. As to the time horizon to acquire a permit, the process takes in theory three months that in practice may go up to six months – the casuistic of each local government may play a significant role in this respect.

 Sweden

Right of way may be granted after application to the Swedish mapping, cadastral and land registration authorities (Sw: Lantmäteriet). Such authorities are obliged to investigate the prerequisites for right of way taking into consideration both public and private interests. The advantages achieved by granting the right of way shall outweigh the disadvantages of such permit. 

 United Kingdom

The Code applies a “general” regime, alongside several “specialist” regimes, which are excluded from the general regime. The general regime applies when an operator requires the agreement of the landowner to exercise its rights under the Code. The specialist regimes relate to street work, overhead lines, tidal waters and railways, canals or tramways. An operator with Code powers has the right to install apparatus over or under a public highway without the need to obtain a “street works” licence under the New Roads and Street Work Act 1991. So long as the operator complies with its obligations to consult the highway authority under the Regulations, the highway authority has no right under the Code to object to the works.

In addition, operators with Code powers benefit from certain exemptions from Town and Country Planning requirements. Note, however, that mobile phone operators will normally require planning permission to erect mobile phone masts, which is the jurisdiction of local planning authorities, rather than Ofcom.

The application process usually takes a few months between submission of a completed application to Ofcom and the granting of Code powers.

[1] See the decree n° 2005-1676 (codified under article R 20 -45 and following of the CPCE

Other questions answered in the international communications bulletin for October 2012: