Session 2014 - 15
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Notices of Amendments:                               

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Temporary code rights

 

27  (1)  

This paragraph applies where—

 

(a)    

an operator gives a notice under paragraph 19(2) to a

 

person in respect of any land,

 

(b)    

the notice requires that person’s agreement in respect of a

 

right which is to be exercisable (in whole or in part) in

 

relation to electronic communications apparatus which is

 

already installed on, under or over the land,

 

(c)    

the notice states that the agreement is sought on a

 

temporary basis, and

 

(d)    

the person has the right to require the removal of the

 

apparatus as a result of paragraph 37 but, as a result of the

 

operation of paragraph 39, the operator is not required to

 

remove the apparatus.

 

      (2)  

The court may, on the application of the operator, impose on the

 

operator and the person an agreement between them which confers

 

on the operator such temporary code rights as appear to the court

 

reasonably necessary for securing the objective in sub-paragraph

 

(3).

 

      (3)  

That objective is that, until proceedings under paragraph 19 or 39

 

are determined, the service provided by the operator’s network is

 

maintained and the apparatus is properly adjusted and kept in

 

repair.

 

      (4)  

Subject to sub-paragraphs (5) and (6), the following provisions

 

apply in relation to an order under this paragraph and an agreement

 

imposed by it as they apply in relation to an order under paragraph

 

19 and an agreement imposed by it—

 

(a)    

paragraph 19(3) (time at which operator may apply for

 

agreement to be imposed);

 

(b)    

paragraph 21 (effect of agreement imposed under

 

paragraph 19);

 

(c)    

in paragraph 22 (terms of agreement imposed under

 

paragraph 19), sub-paragraphs (1) to (6) and (8);

 

(d)    

paragraph 23 (payment of consideration);

 

(e)    

paragraph 25 (payment of compensation);

 

(f)    

paragraph 81 (compensation where agreement imposed).

 

      (5)  

The court may make an order under this paragraph even though the

 

period mentioned in paragraph 19(3)(a) has not elapsed (and

 

paragraph 19(3)(b) does not apply) if the court thinks that the order

 

should be made as a matter of urgency.

 

      (6)  

Paragraphs 22, 23 and 25 apply by virtue of sub-paragraph  (4) as

 

if—

 

(a)    

references to the relevant person were to the person

 

mentioned in sub-paragraph (1) of this paragraph, and

 

(b)    

the duty in paragraph 22 to include terms as to the payment

 

of consideration to that person in an agreement were a

 

power to do so.

 

      (7)  

Sub-paragraph (8) applies where, in the course of the proceedings

 

under paragraph 19, it is shown that a person with an interest in the


 
 

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land was entitled to require the removal of the apparatus

 

immediately after it was installed.

 

      (8)  

The court must, in determining for the purposes of paragraph 19

 

whether the apparatus should continue to be kept on, under or over

 

the land, disregard the fact that the apparatus has already been

 

installed there.

 

Termination and modification of agreements

 

Introductory

 

28         

This Part of this code makes provision about—

 

(a)    

the continuation of code rights after the time at which they

 

cease to be exercisable under an agreement,

 

(b)    

the procedure for bringing an agreement to an end,

 

(c)    

the procedure for changing an agreement relating to code

 

rights, and

 

(d)    

the arrangements for the making of payments under an

 

agreement whilst disputes under this Part are resolved.

 

Application of this Part

 

29  (1)  

This Part of this code applies to an agreement under Part 2 of this

 

code, subject to sub-paragraphs (2) to (4).

 

      (2)  

This Part of this code does not apply to a lease of land in England

 

and Wales if—

 

(a)    

its primary purpose is not to grant code rights, and

 

(b)    

it is a lease to which Part 2 of the Landlord and Tenant Act

 

1954 (security of tenure for business, professional and

 

other tenants) applies.

 

      (3)  

In determining whether a lease is one to which Part 2 of the

 

Landlord and Tenant Act 1954 applies, any agreement under

 

section 38A (agreements to exclude provisions of Part 2) of that Act

 

is to be disregarded.

 

      (4)  

This Part of this code does not apply to a lease of land in Northern

 

Ireland if—

 

(a)    

its primary purpose is not to grant code rights, and

 

(b)    

it is a lease to which the Business Tenancies (Northern

 

Ireland) Order 1996 (SI 1996/725 (NI 5)) applies.

 

      (5)  

An agreement to which this Part of this code applies is referred to

 

in this code as a “code agreement”.

 

Continuation of code rights

 

30  (1)  

Sub-paragraph (2) applies if—

 

(a)    

a code right is conferred by, or is otherwise binding on, a

 

person (the “site provider”) as the result of a code

 

agreement, and

 

(b)    

under the terms of the agreement—


 
 

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(i)    

the right ceases to be exercisable or the site

 

provider ceases to be bound by it, or

 

(ii)    

the site provider may bring the code agreement to

 

an end so far as it relates to that right.

 

      (2)  

Where this sub-paragraph applies the code agreement continues so

 

that—

 

(a)    

the operator may continue to exercise that right, and

 

(b)    

the site provider continues to be bound by the right.

 

      (3)  

Sub-paragraph (2) does not apply to a code right which is conferred

 

by, or is otherwise binding on, a person by virtue of an order under

 

paragraph 26 (interim code rights) or 27 (temporary code rights).

 

      (4)  

Sub-paragraph (2) is subject to the following provisions of this Part

 

of this code.

 

How may a person bring a code agreement to an end?

 

31  (1)  

A site provider who is a party to a code agreement may bring the

 

agreement to an end by giving a notice in accordance with this

 

paragraph to the operator who is a party to the agreement.

 

      (2)  

The notice must—

 

(a)    

comply with paragraph 86 (notices given by persons other

 

than operators),

 

(b)    

specify the date on which the site provider proposes the

 

code agreement should come to an end, and

 

(c)    

state the ground on which the site provider proposes to

 

bring the code agreement to an end.

 

      (3)  

The date specified under sub-paragraph (2)(b) must fall—

 

(a)    

after the end of the period of 18 months beginning with the

 

day on which the notice is given, and

 

(b)    

after the time at which, apart from paragraph 30, the code

 

right to which the agreement relates would have ceased to

 

be exercisable or to bind the site provider or at a time when,

 

apart from that paragraph, the code agreement could have

 

been brought to an end by the site provider.

 

      (4)  

The ground stated under sub-paragraph (2)(c) must be one of the

 

following—

 

(a)    

that the code agreement ought to come to an end as a result

 

of substantial breaches by the operator of its obligations

 

under the agreement;

 

(b)    

that the code agreement ought to come to an end because of

 

persistent delays by the operator in making payments to the

 

site provider under the agreement;

 

(c)    

that the site provider intends to redevelop all or part of the

 

land to which the code agreement relates, or any

 

neighbouring land, and could not reasonably do so unless

 

the code agreement comes to an end;

 

(d)    

that the operator is not entitled to the code agreement

 

because the test under paragraph 20 for the imposition of

 

the agreement on the site provider is not met.


 
 

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What is the effect of a notice under paragraph 31?

 

32  (1)  

Where a site provider gives a notice under paragraph 31, the code

 

agreement to which it relates comes to an end in accordance with

 

the notice unless—

 

(a)    

within the period of three months beginning with the day on

 

which the notice is given, the operator gives the site

 

provider a counter-notice in accordance with sub-

 

paragraph (3), and

 

(b)    

within the period of three months beginning with the day on

 

which the counter-notice is given, the operator applies to

 

the court for an order under paragraph 34.

 

      (2)  

Sub-paragraph (1) does not apply if the operator and the site

 

provider agree to the continuation of the code agreement.

 

      (3)  

The counter-notice must state—

 

(a)    

that the operator does not want the existing code agreement

 

to come to an end,

 

(b)    

that the operator wants the site provider to agree to confer

 

or be otherwise bound by the existing code right on new

 

terms, or

 

(c)    

that the operator wants the site provider to agree to confer

 

or be otherwise bound by a new code right in place of the

 

existing code right.

 

      (4)  

If, on an application under sub-paragraph (1)(b), the court decides

 

that the site provider has established any of the grounds stated in the

 

site provider’s notice under paragraph 31, the court must order that

 

the code agreement comes to an end in accordance with the order.

 

      (5)  

Otherwise the court must make one of the orders specified in

 

paragraph 34.

 

How may a party to a code agreement require a change to the terms of an

 

agreement which has expired?

 

33  (1)  

An operator or site provider who is a party to a code agreement by

 

which a code right is conferred by or otherwise binds the site

 

provider may, by notice in accordance with this paragraph, require

 

the other party to the agreement to agree that—

 

(a)    

the code agreement should have effect with modified

 

terms,

 

(b)    

where under the code agreement more than one code right

 

is conferred by or otherwise binds the site provider, that the

 

agreement should no longer provide for an existing code

 

right to be conferred by or otherwise bind the site provider,

 

(c)    

the code agreement should—

 

(i)    

confer an additional code right on the operator, or

 

(ii)    

provide that the site provider is otherwise bound by

 

an additional code right, or

 

(d)    

the existing code agreement should be terminated and a

 

new agreement should have effect between the parties

 

which—

 

(i)    

confers a code right on the operator, or


 
 

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(ii)    

provides for a code right to bind the site provider.

 

      (2)  

The notice must—

 

(a)    

comply with paragraph 85 or 86, according to whether the

 

notice is given by an operator or a site provider,

 

(b)    

specify—

 

(i)    

the day from which it is proposed that the modified

 

terms should have effect,

 

(ii)    

the day from which the agreement should no

 

longer provide for the code right to be conferred by

 

or otherwise bind the site provider,

 

(iii)    

the day from which it is proposed that the

 

additional code right should be conferred by or

 

otherwise bind the site provider, or

 

(iv)    

the day on which it is proposed the existing code

 

agreement should be terminated and from which a

 

new agreement should have effect,

 

    

(as the case may be), and

 

(c)    

set out details of—

 

(i)    

the proposed modified terms,

 

(ii)    

the code right it is proposed should no longer be

 

conferred by or otherwise bind the site provider,

 

(iii)    

the proposed additional code right, or

 

(iv)    

the proposed terms of the new agreement,

 

    

(as the case may be).

 

      (3)  

The day specified under sub-paragraph (2)(b) must fall—

 

(a)    

after the end of the period of 6 months beginning with the

 

day on which the notice is given, and

 

(b)    

after the time at which, apart from paragraph 30, the code

 

right would have ceased to be exercisable or to bind the site

 

provider or at a time when, apart from that paragraph, the

 

code agreement could have been brought to an end by the

 

site provider.

 

      (4)  

Sub-paragraph (5) applies if, after the end of the period of 6 months

 

beginning with the day on which the notice is given, the operator

 

and the site provider have not reached agreement on the proposals

 

in the notice.

 

      (5)  

Where this paragraph applies, the operator or the site provider may

 

apply to the court for the court to make an order under paragraph 34.

 

What orders may a court make on an application under paragraph 32 or 33?

 

34  (1)  

This paragraph sets out the orders that the court may make on an

 

application under paragraph 32(1)(b) or 33(5).

 

      (2)  

The court may order that the operator may continue to exercise the

 

existing code right in accordance with the existing code agreement

 

for such period as may be specified in the order (so that the code

 

agreement has effect accordingly).

 

      (3)  

The court may order the modification of the terms of the code

 

agreement relating to the existing code right.


 
 

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      (4)  

Where under the code agreement more than one code right is

 

conferred by or otherwise binds the site provider, the court may

 

order that the code agreement has effect so that it no longer provides

 

for an existing code right to be conferred by or otherwise bind the

 

site provider.

 

      (5)  

The court may order that the code agreement relating to the existing

 

code right has effect so that—

 

(a)    

it confers an additional code right on the operator, or

 

(b)    

it provides that the site provider is otherwise bound by an

 

additional code right.

 

      (6)  

The court may order the termination of the code agreement relating

 

to the existing code right (subject to sub-paragraph (10)), and order

 

the operator and the site provider to enter into a new agreement

 

which—

 

(a)    

confers a code right on the operator, or

 

(b)    

provides for a code right to bind the site provider.

 

      (7)  

The terms of the new agreement are to be such as are agreed

 

between the operator and site provider.

 

      (8)  

If the operator and the site provider are unable to agree on the terms

 

of the new agreement, the court must on an application by either

 

party make an order specifying those terms.

 

      (9)  

Paragraphs 22(2) to (8), 23, 25 and 81 apply to an order under sub-

 

paragraph (8) as they apply to an order under paragraph 19; but the

 

court must also have regard to the terms of the existing code

 

agreement in determining the terms of the new agreement.

 

    (10)  

The existing code agreement continues until the new agreement

 

takes effect.

 

    (11)  

This code applies to the new agreement as if it were an agreement

 

under Part 2 of this code.

 

    (12)  

In determining which order to make under this paragraph, the court

 

must have regard to all the circumstances of the case, and in

 

particular to—

 

(a)    

the operator’s business and technical needs,

 

(b)    

the use that the site provider is making of the land to which

 

the existing code agreement relates,

 

(c)    

any duties imposed on the site provider by an enactment,

 

and

 

(d)    

the amount of consideration payable by the operator to the

 

site provider under the existing code agreement.

 

    (13)  

Where the court makes an order under this paragraph, it may also

 

order the operator to pay the site provider the amount (if any) by

 

which A exceeds B, where—

 

(a)    

A is the amount of consideration that would have been

 

payable by the operator to the site provider for the relevant

 

period if that amount had been assessed on the same basis

 

as the consideration payable as the result of order, and

 

(b)    

B is the amount of consideration payable by the operator to

 

the site provider for the relevant period.


 
 

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    (14)  

In sub-paragraph (13) the relevant period is the period (if any)

 

that—

 

(a)    

begins on the date on which, apart from the operation of

 

paragraph 30, the code right would have ceased to be

 

exercisable or to bind the site provider or from which, apart

 

from that paragraph, the code agreement could have been

 

brought to an end by the site provider, and

 

(b)    

ends on the date on which the order is made.

 

What arrangements for payment can be made pending determination of the

 

application?

 

35  (1)  

This paragraph applies where—

 

(a)    

a code right continues to be exercisable under paragraph 30

 

after the time at which, apart from the operation of that

 

paragraph, the code right would have ceased to be

 

exercisable or to bind the site provider or from which, apart

 

from that paragraph, the code agreement could have been

 

brought to an end by the site provider, and

 

(b)    

the operator or the site provider has applied to the court for

 

an order under paragraph 32(1)(b) or 33(5).

 

      (2)  

The site provider may—

 

(a)    

agree with the operator that, until the application has been

 

finally determined, the site provider will continue to

 

receive the payments of consideration from the operator to

 

which the site provider is entitled under the agreement

 

relating to the existing code right,

 

(b)    

agree with the operator that, until that time, the site

 

provider will receive different payments of consideration

 

under that agreement, or

 

(c)    

apply to the court for the court to determine the payments

 

of consideration to be made by the operator to the site

 

provider under that agreement until that time.

 

      (3)  

The court must determine the payments under sub-paragraph (3)(c)

 

on the basis set out in paragraph 23 (calculation of consideration).

 

Rights to require removal of electronic communications apparatus

 

Introductory

 

36         

This Part of this code makes provision about—

 

(a)    

the cases in which a person with an interest in land has the

 

right to require the removal of electronic communications

 

apparatus,

 

(b)    

the means by which a person can discover whether

 

apparatus is on land pursuant to a code right, and

 

(c)    

the means by which a right to require removal can be

 

enforced.


 
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