House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

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(c)
power to impose on either party any other requirements

which the arbitrator thinks appropriate (including a

requirement to provide information in such form as the

arbitrator thinks appropriate);

(d)
power to make an award—

(i)
requiring modifications to the proposed works, and

(ii)
specifying the terms on which, and the conditions

subject to which, the proposed works may be

carried out;

(e)
power to award one or both of the following, payable to the

transport undertaker—

(i)
compensation for loss or damage sustained by that

person in consequence of the carrying out of the

works;

(ii)
consideration for the right to carry out the works.

      (4)
If the matter in dispute is a disagreement about an amount of

compensation, the arbitrator has the following powers—

(a)
power to impose on either party any requirements which

the arbitrator thinks appropriate (including a requirement to

provide information in such form as the arbitrator thinks

appropriate);

(b)
power to award compensation, payable to the transport

undertaker, for loss or damage sustained by that person in

consequence of the carrying out of the emergency works.

      (5)
The arbitrator may make an award conditional upon a party

complying with a requirement imposed under sub-paragraph (3)(a),

(b) or (c) or (4)(a).

      (6)
In determining what award to make, the matters to which the

arbitrator must have regard include the public interest in there being

access to a choice of high quality electronic communications

services.

      (7)
The arbitrator’s power under sub-paragraph (3) or (4) to award

compensation for loss includes power to award compensation for

any increase in the expenses incurred by the transport undertaker in

carrying on its railway, canal or tramway undertaking.

      (8)
An award of consideration under sub-paragraph (3)(e)(ii) must be

determined on the basis of what would have been fair and

reasonable if the transport undertaker had willingly given authority

for the works to be carried out on the same terms, and subject to the

same conditions (if any), as are contained in the award.

      (9)
In this paragraph “party” means—

(a)
the operator, or

(b)
the transport undertaker.

When can a transport undertaker require an operator to alter communications

apparatus?

49  (1)
A transport undertaker may give an operator notice which requires

the operator to alter a line or other electronic communications

apparatus specified in the notice (“notice requiring alterations”) on

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the ground that keeping the apparatus on, under or over transport

land interferes with, or is likely to interfere with—

(a)
the carrying on of the transport undertaker’s railway, canal

or tramway undertaking, or

(b)
anything done or to be done for the purposes of its railway,

canal or tramway undertaking.

      (2)
The operator may, within the notice period, give the transport

undertaker notice (“counter-notice”) specifying the respects in

which the operator is not prepared to comply with the notice

requiring alterations.

      (3)
The operator must comply with the notice requiring alterations,

within a reasonable time and to the reasonable satisfaction of the

transport undertaker, if—

(a)
the notice period has ended, and

(b)
no counter-notice has been given.

      (4)
If counter-notice has been given (within the notice period), the

transport undertaker may apply to the court for an order requiring

the operator to alter any of the specified apparatus.

      (5)
The court must not make an order unless it is satisfied that the order

is necessary on one of the grounds mentioned in sub-paragraph (1).

      (6)
In determining whether to make an order, the matters to which the

court must also have regard include the public interest in there

being access to a choice of high quality electronic communications

services.

      (7)
An order under this paragraph may take such form and be on such

terms as the court thinks fit.

      (8)
In particular, the order—

(a)
may impose such conditions, and

(b)
may contain such directions to the operator or the transport

undertaker,


as the court thinks necessary for resolving any difference between

the operator and the transport undertaker and for protecting their

respective interests.

      (9)
In this paragraph—

“notice period” means the period of 28 days beginning with the day on

which notice requiring alterations is given;

“specified apparatus” means the line or other electronic

communications apparatus specified in notice requiring alterations.

What happens to the transport land rights if land ceases to be transport land?

50  (1)
This paragraph applies if an operator is exercising a transport land

right in relation to land immediately before a time when it ceases to

be transport land.

      (2)
After that time, this Part of this code — except for paragraph 49 —

continues to apply to the land as if it were still transport land (and,

accordingly, the operator may continue to exercise any transport

land right in relation to the land as if it were still transport land).

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      (3)
But sub-paragraph (2) is subject to sub-paragraphs (4) to (9).

      (4)
In the application of this Part of this code to land in accordance with

sub-paragraph (2), references to the transport undertaker have

effect as references to the occupier of the land.

      (5)
The application of this Part of this code to land in accordance with

sub-paragraph (2) does not authorise the operator—

(a)
to cross the land with any line that is not in place at the time

when the land ceases to be transport land, or

(b)
to install and keep any line or other electronic

communications apparatus that is not in place at the time

when the land ceases to be transport land.

      (6)
But sub-paragraph (5) does not affect the power of the operator to

replace an existing line or other apparatus (whether in place at the

time when the land ceased to be transport land or a replacement

itself authorised by this sub-paragraph) with a new line or apparatus

which—

(a)
is not substantially different from the existing line or

apparatus, and

(b)
is not in a significantly different position.

      (7)
The occupier of the land may, at any time after the land ceases to be

transport land, give the operator notice specifying a date on which

this Part of this code is to cease to apply to the land in accordance

with this paragraph (“notice of termination”).

      (8)
That date specified in the notice of termination must fall after the

end of the period of 12 months beginning with the day on which the

notice of termination is given.

      (9)
On the date specified in notice of termination in accordance with

sub-paragraph (8), the transport land rights cease to be exercisable

in relation to the land in accordance with this paragraph.

Offence: operators who do not comply with this Part of this code

51  (1)
An operator is guilty of an offence if the operator starts any works

in contravention of any provision of paragraph 45, paragraph 46 or

paragraph 47.

      (2)
An operator guilty of an offence under this paragraph is liable on

summary conviction to a fine not exceeding level 3 on the standard

scale.

      (3)
In a case where this Part of this code applies in accordance with

paragraph 50, the reference in this paragraph to paragraph 45,

paragraph 46 or paragraph 47 is a reference to that paragraph as it

applies in accordance with paragraph 50.

Conferral of street work rights and their exercise

Introductory

52
This Part of this code makes provision about—

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(a)
the conferral of street work rights, and

(b)
the exercise of street work rights.

Streets and roads

53
In this Part of this code—

“road” means—

(j)
a road in Scotland which is a public road;

(k)
a road in Northern Ireland, other than any land comprised in

the route of a special road (within the meaning of the Roads

(Northern Ireland) Order 1993 (SI 1993/3160 (NI 15)));

“street” means a street in England and Wales which is a maintainable

highway (within the meaning of Part 3 of New Roads and Street

Works Act 1991), other than one which is a footpath, bridleway or

restricted byway that crosses, and forms part of, any agricultural

land or any land which is being brought into use for agriculture.

Conferral of street work rights

54  (1)
An operator may exercise a street work right for the statutory

purposes.

      (2)
But that is subject to the following provisions of this Part of this

code.

The street work rights

55  (1)
For the purposes of this code a “street work right”, in relation to an

operator, is—

(a)
a right to install and keep electronic communications

apparatus in, on, under, over, along or across a street or a

road;

(b)
a right to inspect, maintain, adjust, alter, repair, upgrade or

operate electronic communications apparatus which is

installed or kept by the exercise of the right under

paragraph (a);

(c)
a right to carry out any works in, on, under, over, along or

across a street or road for or in connection with the exercise

of a right under paragraph (a) or (b);

(d)
a right to enter any street or road to inspect, maintain,

adjust, alter, repair, upgrade or operate electronic

communications apparatus which is installed or kept by the

exercise of the right under paragraph (a).

      (2)
The works that may be carried out under sub-paragraph (1)(c)

include—

(a)
breaking up or opening a street or a road;

(b)
tunnelling or boring under a street or a road;

(c)
breaking up or opening a sewer, drain or tunnel.

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What happens to the street work rights if land ceases to be a street or road?

56  (1)
This paragraph applies if an operator is exercising a street work

right in relation to land immediately before a time when the land

ceases to be a street or road.

      (2)
After that time, this Part of this code continues to apply to the land

as if it were still a street or road (and, accordingly, the operator may

continue to exercise any street work right in relation to the land as

if it were still a street or road).

      (3)
But sub-paragraph (2) is subject to sub-paragraphs (4) to (7).

      (4)
The application of this Part of this code to land in accordance with

sub-paragraph (2) does not authorise the operator to install or keep

any electronic communications apparatus that is not in place at the

time when the land ceases to be a street or road.

      (5)
But sub-paragraph (4) does not affect the power of the operator to

replace existing apparatus (whether in place at the time when the

land ceased to be a street or road or a replacement itself authorised

by this sub-paragraph) with new apparatus which—

(a)
is not substantially different from the existing apparatus,

and

(b)
is not in a significantly different position.

      (6)
The occupier of land may, at any time after the land ceases to be a

street or road, give the operator notice specifying a date on which

this Part of this code is to cease to apply to the land in accordance

with this paragraph (“notice of termination”).

      (7)
That date specified in the notice of termination must fall after the

end of the period of 12 months beginning with the day on which the

notice of termination is given.

      (8)
On the date specified in notice of termination in accordance with

sub-paragraph (7), the street work rights cease to be exercisable in

relation to the land in accordance with this paragraph.

Conferral of tidal water rights and their exercise

Introductory

57
This Part of this code makes provision about—

(a)
the conferral of tidal water rights, and

(b)
the exercise of tidal water rights.

Tidal water or lands

58
In this Part of this code “tidal water or lands” includes—

(a)
any estuary or branch of the sea,

(b)
the shore below mean high water springs, and

(c)
the bed of any tidal water.

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Conferral of tidal water rights

59  (1)
An operator may exercise a tidal water right for the statutory

purposes.

      (2)
But that is subject to the following provisions of this Part of this

code.

The tidal water rights

60  (1)
For the purposes of this code a “tidal water right”, in relation to an

operator, is—

(a)
a right to install and keep electronic communications

apparatus on, under or over tidal water or lands;

(b)
a right to inspect, maintain, adjust, alter, repair, upgrade or

operate electronic communications apparatus on, under or

over the tidal water or lands;

(c)
a right to carry out any works on, under or over any tidal

water or lands for or in connection with the exercise of a

right under paragraph (a) or (b);

(d)
a right to enter any tidal water or lands to inspect, maintain,

adjust, alter, repair, upgrade or operate electronic

communications apparatus which is installed or kept by the

exercise of the right under paragraph (a).

      (2)
The works that may be carried out under sub-paragraph (1)(c)

include placing a buoy or seamark.

Exercise of tidal water right: Crown land

61  (1)
An operator may not exercise a tidal water right in relation to land

in which a Crown interest subsists unless agreement has been given

to the exercise of the right in relation to the land, in accordance with

paragraph 100, in respect of that interest.

      (2)
If, under a term of such an agreement (the “relevant term”), the

amount of consideration payable in respect of a tidal water right

exceeds the market value of the right, the relevant term may only be

enforced so as to require payment of an amount of consideration

which is equal to that market value.

      (3)
For this purpose the market value of a tidal water right is the amount

that, at the date when the relevant term was agreed, a willing buyer

would have paid a willing seller for the agreement—

(a)
in a transaction at arm’s length, and

(b)
on the basis that the buyer and seller were acting prudently

and with full knowledge of the transaction.

      (4)
The market value—

(a)
must be assessed on the basis of the value to the operator of

the tidal water right and having regard to the use which the

operator intends to make of the tidal waters or land in

exercising that right (even if the operator may only use the

tidal waters or land in that way pursuant to powers

conferred by an enactment), and

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(b)
must not be assessed on the basis of the value of the tidal

water right to the holder of the Crown interest.

      (5)
The market value must be assessed on the assumption that there is

more than one site which the operator could use for the purpose for

which the operator intends to use the tidal waters or land in question

(whether or not that is actually the case).

Undertaker’s works affecting electronic communications

apparatus

Introductory

62
This Part of this code makes provision about the carrying out of

undertaker’s works by undertakers or operators.

Key definitions

63  (1)
In this Part of this code—

“undertaker” means a person (including a local authority) of a

description set out in any of the entries in the first column of the

following table;

“undertaker’s works”, in relation to an undertaker of a description set

out in a particular entry in the first column of the table, means works

of the description set out in the corresponding entry in the second

column of the table.

“undertaker”
“undertaker’s works”

A person authorised by any enactment
Works that the undertaker is

(whether public general or local) or
authorised to carry out for the

by any order or scheme made under or
purposes of, or in connection with, the

confirmed by any enactment to carry
undertaking which it carries on

on any railway, tramway, road

transport, water transport, canal,

inland navigation, dock, harbour, pier

or lighthouse undertaking

A person (apart from an operator) to
Works that the undertaker is

whom this code is applied by a
authorised to carry out by or in

direction under section 106 of the
accordance with any provision of this

Communications Act 2003
code

Any person to whom this Part of this
Works for the purposes of which this

code is applied by any enactment
paragraph is applied to the undertaker

(whenever passed or made)

      (2)
In this Part of this code—

(a)
a reference to undertaker’s works which interfere with a

network is a reference to any undertaker’s works which

involve, or are likely to involve, an alteration of any

electronic communications apparatus kept on, under or

over any land for the purposes of an operator’s network;



© Parliamentary copyright	Revised 9 January 2015