House of Commons Amendments

Session 2014 - 15
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Other Bills before Parliament

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.



© Parliamentary copyright	Revised 9 January 2015