Rights of way for electronic communications: Are specific regulations in place with respect to rights of way and private land owners?

10 October 2012

 France 

Yes, the operators of public networks benefits also from easements (servitude) for the installation and operation of network equipments on private property.

The implementation of the easement is subject to an authorisation which is delivered on behalf of the State by the mayor after the owners have been informed of the reasons for the establishment of easement and its location. They have three months to submit their comments on the project. Work can not begin before the expiration of that period. In case of dispute, the terms of implementation of the easement shall be determined by the President of the county court (tribunal de grande instance).

 Germany

As already mentioned above, a private right of way is granted directly by statute and entitles all operators and/or owners of (public or non-public) telecommunications infrastructure to use the private land without requirement of any further act of government. However, with respect to the usage of private land or buildings to construct network access points for end customers, the private right of way is only granted with respect to next generation access (NGA) networks. Other access lines (i.e. copper) require private agreements between landowner and network operator or service provider.

Notwithstanding the above and due to many disputes and court precedents on right of way scope and compensation, for most uses of private land the parties choose to conclude a specific agreement that governs all aspects of the usage, compensation, lift & shift and removal after termination etc. For backbone infrastructure, such agreements are often complemented by servitudes, which are entered into the land register and that grant specific protection to the right of way holder. For access infrastructure, historically, there never existed a private right of way, thus the parties always had to conclude separate agreements. However, in 2012 the legislator now introduced such a private right of way for NGA construction, i.e. for fttb (fiber to the building) and ftth (fiber to the home) projects.

 Italy 

As anticipated above, where wires, cables or other infrastructure must be placed on or under the ground, rights of way can be imposed in case the private owner does not consent to the placement.

 Netherlands 

Dutch legislation contains rights of way for network owners in private lands for connecting households and the deployment of backbone cables.

 Poland 

Yes. See question 1.

 Spain 

Please see answer to question 1. To be also noted that, on equal terms, the occupation of public land prevails over the occupation of private property, which has a subsidiary character for the purpose of deploying a public electronic communications network. This is the doctrine established by both the judicial authority and the Regulator (1).

 United Kingdom 

See comment above about the “general” regime. Code powers entitle an operator to apply to court for an order allowing the operator to enter and install apparatus on private land. Once installed, operators also have the right to keep the apparatus installed on private land unless and until a court orders its removal.

[1] Judgement of the Spanish Supreme Court of April 3rd 2007  (RJ 2007, 1987) and decision adopted by CMT on March 29th 2007 (ref. RO 2006/1271).
 

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