Session 2014 - 15
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Notices of Amendments:                               

150

 

, continued

 
 

(b)    

a reference to an alteration of any electronic

 

communications apparatus is a reference to a temporary or

 

permanent alteration of the apparatus.

 

When can an undertaker carry out non-emergency undertaker’s works?

 

64  (1)  

Before carrying out non-emergency undertaker’s works which

 

interfere with a network, an undertaker must give the operator

 

notice of the intention to carry out the works (“notice of proposed

 

works”).

 

      (2)  

Notice of proposed works must specify—

 

(a)    

the nature of the proposed undertaker’s works,

 

(b)    

the alteration of the electronic communications apparatus

 

which the works involve or are likely to involve, and

 

(c)    

the time and place at which the works will begin.

 

      (3)  

The undertaker must not begin the proposed undertaker’s works

 

(including the proposed alteration of electronic communications

 

apparatus) until the notice period has ended.

 

      (4)  

But the undertaker’s power to alter electronic communications

 

apparatus (in carrying out the proposed undertaker’s works) is

 

subject to paragraph 65.

 

      (5)  

In this paragraph—

 

“non-emergency undertaker’s works” means any undertaker’s works

 

which are not emergency works under paragraph 68;

 

“notice period” means the period of 10 days beginning with the day on

 

which notice of proposed works is given.

 

What is the effect of the operator giving counter-notice to the undertaker?

 

65  (1)  

This paragraph applies if an undertaker gives an operator notice of

 

proposed works under paragraph 64.

 

      (2)  

The operator may, within the notice period, give the undertaker

 

notice (“counter-notice”) stating either—

 

(a)    

that the operator requires the undertaker to make any

 

alteration of the electronic communications apparatus that

 

is necessary or expedient because of the proposed

 

undertaker’s works—

 

(i)    

under the supervision of the operator, and

 

(ii)    

to the satisfaction of the operator; or

 

(b)    

that the operator intends to make any alteration of the

 

electronic communications apparatus that is necessary or

 

expedient because of the proposed undertaker’s works.

 

      (3)  

In a case where counter-notice contains a statement under sub-

 

paragraph (2)(a), the undertaker must act in accordance with the

 

counter-notice when altering electronic communications apparatus

 

(in carrying out the proposed undertaker’s works).

 

      (4)  

But, if the operator unreasonably fails to provide the required

 

supervision, the undertaker must act in accordance with the

 

counter-notice only insofar as it requires alterations to be made to

 

the satisfaction of the operator.


 
 

Notices of Amendments:                               

151

 

, continued

 
 

      (5)  

In a case where counter-notice contains a statement under sub-

 

paragraph (2)(b) (operator intends to make alteration), the

 

undertaker must not alter electronic communications apparatus (in

 

carrying out the proposed undertaker’s works).

 

      (6)  

But that does not prevent the undertaker from making any alteration

 

of electronic communications apparatus which the operator fails to

 

make within a reasonable time.

 

      (7)  

Expressions defined in paragraph 64 have the same meanings in this

 

paragraph.

 

What expenses must the undertaker pay?

 

66  (1)  

This paragraph applies if an undertaker carries out any non-

 

emergency undertaker’s works in accordance with paragraph 64

 

(including in a case where counter-notice is given under paragraph

 

65).

 

      (2)  

The undertaker must pay the operator the amount of any loss or

 

damage sustained by the operator in consequence of any alteration

 

being made to electronic communications apparatus (in carrying

 

out the works).

 

      (3)  

The undertaker must pay the operator any expenses incurred by the

 

operator in, or in connection with, supervising the undertaker when

 

altering electronic communications apparatus (in carrying out the

 

works).

 

      (4)  

Any amount which is not paid in accordance with this paragraph is

 

to be recoverable by the operator from the undertaker in any court

 

of competent jurisdiction.

 

When can the operator alter apparatus in connection with non-emergency

 

undertaker’s works?

 

67  (1)  

An operator may make an alteration of electronic communications

 

apparatus if—

 

(a)    

notice of proposed works has been given,

 

(b)    

the notice period has ended, and

 

(c)    

counter-notice has been given which states (in accordance

 

with paragraph 65(2)(b)) that the operator intends to make

 

the alteration.

 

      (2)  

If the operator makes any alteration in accordance with this

 

paragraph, the undertaker must pay the operator—

 

(a)    

any expenses incurred by the operator in, or in connection

 

with, making the alteration; and

 

(b)    

the amount of any loss or damage sustained by the operator

 

in consequence of the alteration being made.

 

      (3)  

Any amount which is not paid in accordance with sub-paragraph (2)

 

is to be recoverable by the operator from the undertaker in any court

 

of competent jurisdiction.

 

      (4)  

Expressions defined in paragraph 64 have the same meanings in this

 

paragraph.


 
 

Notices of Amendments:                               

152

 

, continued

 
 

When can an undertaker carry out emergency undertaker’s works?

 

68  (1)  

An undertaker may, in carrying out emergency undertaker’s works,

 

make an alteration of any electronic communications apparatus

 

kept on, under or over any land for the purposes of an operator’s

 

network.

 

      (2)  

The undertaker must give the operator notice of the emergency

 

undertaker’s works as soon as practicable after beginning them.

 

      (3)  

This paragraph does not authorise the undertaker to make an

 

alteration of apparatus after any failure by the undertaker to give

 

notice in accordance with subsection (2).

 

      (4)  

The undertaker must make the alteration to the satisfaction of the

 

operator.

 

      (5)  

If the undertaker makes any alteration in accordance with this

 

paragraph, the undertaker must pay the operator—

 

(a)    

any expenses incurred by the operator in, or in connection

 

with, supervising the undertaker when making the

 

alteration; and

 

(b)    

the amount of any loss or damage sustained by the operator

 

in consequence of the alteration being made.

 

      (6)  

Any amount which is not paid in accordance with sub-paragraph (5)

 

is to be recoverable by the operator from the undertaker in any court

 

of competent jurisdiction.

 

      (7)  

In this paragraph “emergency undertaker’s works” means

 

undertaker’s works carried out in order to stop anything already

 

occurring, or to prevent anything imminent from occurring, which

 

is likely to cause—

 

(a)    

danger to persons or property,

 

(b)    

interference with the exercise of any functions conferred or

 

imposed on the undertaker by or under any enactment, or

 

(c)    

substantial loss to the undertaker,

 

            

and any other works which it is reasonable (in all the

 

circumstances) to carry out with those works.

 

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

 

69  (1)  

An undertaker, or an agent of an undertaker, is guilty of an offence

 

if that person—

 

(a)    

makes an alteration of electronic communications

 

apparatus in carrying out non-emergency undertaker’s

 

works, and

 

(b)    

does so—

 

(i)    

without notice of proposed works having been

 

given in accordance with paragraph 64, or

 

(ii)    

(in a case where such notice is given) before the

 

end of the notice period under paragraph 64.

 

      (2)  

An undertaker, or an agent of an undertaker, is guilty of an offence

 

if that person—


 
 

Notices of Amendments:                               

153

 

, continued

 
 

(a)    

makes an alteration of electronic communications

 

apparatus in carrying out non-emergency undertaker’s

 

works, and

 

(b)    

unreasonably fails to comply with any reasonable

 

requirement of the operator under this Part of this code

 

when doing so.

 

      (3)  

An undertaker, or an agent of an undertaker, is guilty of an offence

 

if that person—

 

(a)    

makes an alteration of electronic communications

 

apparatus in carrying out emergency undertaker’s works,

 

and

 

(b)    

does so without notice of emergency undertaker’s works

 

having been given in accordance with paragraph 68.

 

      (4)  

A person guilty of an offence under this paragraph is liable on

 

summary conviction to—

 

(a)    

a fine not exceeding level 4 on the standard scale, if the

 

service provided by the operator’s network is interrupted

 

by the works or failure, or

 

(b)    

a fine not exceeding level 3 on the standard scale, if that

 

service is not interrupted.

 

      (5)  

This paragraph does not apply to a Northern Ireland department.

 

Overhead apparatus

 

Introductory

 

70         

This Part of this code—

 

(a)    

confers a power on operators to install and keep certain

 

overhead apparatus, and

 

(b)    

imposes a duty on operators to affix notices to certain

 

overhead apparatus.

 

Power to fly lines

 

71  (1)  

This paragraph applies where any electronic communications

 

apparatus is kept on or over any land for the purposes of an

 

operator’s network.

 

      (2)  

The operator has the right, for the statutory purposes, to install and

 

keep lines which—

 

(a)    

pass over other land adjacent to, or in the vicinity of, the

 

land on or over which the apparatus is kept,

 

(b)    

are connected to that apparatus, and

 

(c)    

are not, at any point where they pass over the other land,

 

less than three metres above the ground or within two

 

metres of any building over which they pass.

 

      (3)  

Sub-paragraph (2) does not authorise the installation or keeping on

 

or over any land of—

 

(a)    

any electronic communications apparatus used to support,

 

carry or suspend a line installed under sub-paragraph (2), or


 
 

Notices of Amendments:                               

154

 

, continued

 
 

(b)    

any line which, as a result of its position, interferes with the

 

carrying on of any business carried on on that land.

 

      (4)  

In this paragraph “business” includes a trade, profession or

 

employment and includes any activity carried on by a body of

 

persons (whether corporate or unincorporate).

 

Duty to attach notices to overhead apparatus

 

72  (1)  

This paragraph applies where—

 

(a)    

an operator has, for the purposes of the operator’s network,

 

installed any electronic communications apparatus, and

 

(b)    

the whole or part of the apparatus is at a height of three

 

metres or more above the ground.

 

      (2)  

The operator must, before the end of the period of three days

 

beginning with the day after that on which the installation is

 

completed, in a secure and durable manner attach a notice—

 

(a)    

to every major item of apparatus installed, or

 

(b)    

if no major item of apparatus is installed, to the nearest

 

major item of electronic communications apparatus to

 

which the apparatus that is installed is directly or indirectly

 

connected.

 

      (3)  

A notice attached under sub-paragraph (1) above—

 

(a)    

must be attached in a position where it is reasonably

 

legible, and

 

(b)    

must give the name of the operator and an address in the

 

United Kingdom at which any notice of objection may be

 

given under paragraph 74(5) in respect of the apparatus in

 

question.

 

      (4)  

Any person giving such a notice at that address in respect of that

 

apparatus is to be treated as having given that address for the

 

purposes of paragraph 88(2).

 

      (5)  

An operator who breaches the requirements of this paragraph is

 

guilty of an offence and liable on summary conviction to a fine not

 

exceeding level 2 on the standard scale.

 

      (6)  

In any proceedings for an offence under this paragraph it is a

 

defence for the person charged to prove that the person took all

 

reasonable steps and exercised all due diligence to avoid

 

committing the offence.

 

Rights to object to certain apparatus

 

Introductory

 

73         

This Part of this code makes provision conferring rights to object to

 

certain kinds of apparatus, and makes provision about—

 

(a)    

the cases in which and persons by whom a right can be

 

exercised, and


 
 

Notices of Amendments:                               

155

 

, continued

 
 

(b)    

the power and procedures of the court if an objection is

 

made.

 

When and by whom can a right to object be exercised?

 

74  (1)  

A right to object under this Part of this code is available where,

 

pursuant to the right in paragraph 59, an operator keeps electronic

 

communications apparatus installed on, under or over tidal water or

 

lands.

 

      (2)  

In that case a person has a right to object under this Part of this code

 

if the person—

 

(a)    

is an occupier of, or has an interest in, the tidal water or

 

lands,

 

(b)    

is not bound by a code right enabling the operator to keep

 

the apparatus installed on, under or over the tidal water or

 

lands, and

 

(c)    

is not a person with the benefit of a Crown interest in the

 

tidal water or lands.

 

      (3)  

A right to object under this Part of this code is available where an

 

operator keeps a line installed over land pursuant to the right in

 

paragraph 71.

 

      (4)  

In that case a person has a right to object under this Part of this code

 

if the person—

 

(a)    

is an occupier of, or has an interest in, the land, and

 

(b)    

is not bound by a code right enabling the operator to keep

 

the apparatus installed over the land.

 

      (5)  

A right to object under this Part of this code is available where—

 

(a)    

electronic communications apparatus is kept on or over

 

land for the purposes of an operator’s network, and

 

(b)    

the whole or any part of that apparatus is at a height of three

 

metres or more above the ground.

 

      (6)  

In that case a person has a right to object under this Part of this code

 

if—

 

(a)    

the person is an occupier of, or has an interest in, any

 

neighbouring land, and

 

(b)    

because of the nearness of the neighbouring land to the land

 

on or over which the apparatus is kept—

 

(i)    

the enjoyment of the neighbouring land is capable

 

of being prejudiced by the apparatus, or

 

(ii)    

any interest in that land is capable of being

 

prejudiced by the apparatus.

 

      (7)  

There is no right to object under this Part of this code in respect of

 

the apparatus if the apparatus—

 

(a)    

replaces any electronic communications apparatus which is

 

not substantially different from the new apparatus, and

 

(b)    

is not in a significantly different position.


 
 

Notices of Amendments:                               

156

 

, continued

 
 

How may a right to object be exercised?

 

75  (1)  

A person with a right to object under this Part (“the objector”) may

 

exercise the right by giving a notice to the operator.

 

      (2)  

The right to object that the person has, and the procedure that

 

applies to that right, depends on whether—

 

(a)    

the notice is given before the end of the period of 12 months

 

beginning with the date on which installation of the

 

apparatus was completed (see paragraph 76), or

 

(b)    

the notice is given after the end of that period (see

 

paragraph 77).

 

What is the procedure if the objection is made within 12 months of installation?

 

76  (1)  

This paragraph applies if the notice is given before the end of the

 

period of 12 months beginning with the date on which installation

 

of the apparatus was completed.

 

      (2)  

At any time after the end of the period of two months beginning

 

with the date on which the notice is given, but before the end of the

 

period of four months beginning with that date, the objector may

 

apply to the court to have the objection upheld.

 

      (3)  

The court must uphold the objection if the following conditions are

 

met.

 

      (4)  

The first condition is that the apparatus appears materially to

 

prejudice the objector’s enjoyment of, or interest in, the land by

 

reference to which the objection is made.

 

      (5)  

The second condition is that the court is not satisfied that the only

 

possible alterations of the apparatus will—

 

(a)    

substantially increase the cost or diminish the quality of the

 

service provided by the operator’s network to persons who

 

have, or may in future have, access to it,

 

(b)    

involve the operator in substantial additional expenditure

 

(disregarding any expenditure caused solely by the fact that

 

any proposed alteration was not adopted originally or, as

 

the case may be, that the apparatus has been unnecessarily

 

installed), or

 

(c)    

give to any person a case at least as good as the objector has

 

to have an objection under this paragraph upheld.

 

      (6)  

If the court upholds an objection under this paragraph it may by

 

order do any of the following—

 

(a)    

direct the alteration of the apparatus to which the objection

 

relates;

 

(b)    

authorise the installation (instead of the apparatus to which

 

the objection relates), in a manner and position specified in

 

the order, of any apparatus specified in the order;

 

(c)    

direct that no objection may be made under this paragraph

 

in respect of any apparatus the installation of which is

 

authorised by the court.


 
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Revised 9 January 2015