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| |
| |
|
| | (b) | a reference to an alteration of any electronic |
|
| | communications apparatus is a reference to a temporary or |
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| | 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 |
|
| | |
| | (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 |
|
| | |
| | |
| | “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 |
|
| | |
| | (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 |
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| | (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. |
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|
|
| |
| |
|
| | (5) | In a case where counter-notice contains a statement under sub- |
|
| | paragraph (2)(b) (operator intends to make alteration), the |
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| | 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 |
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| | make within a reasonable time. |
|
| | (7) | Expressions defined in paragraph 64 have the same meanings in this |
|
| | |
| | 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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | 67 (1) | An operator may make an alteration of electronic communications |
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| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
|
|
| |
| |
|
| | 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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (a) | makes an alteration of electronic communications |
|
| | apparatus in carrying out non-emergency undertaker’s |
|
| | |
| | |
| | (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 |
|
| | |
|
|
| |
| |
|
| | (a) | makes an alteration of electronic communications |
|
| | apparatus in carrying out non-emergency undertaker’s |
|
| | |
| | (b) | unreasonably fails to comply with any reasonable |
|
| | requirement of the operator under this Part of this code |
|
| | |
| | (3) | An undertaker, or an agent of an undertaker, is guilty of an offence |
|
| | |
| | (a) | makes an alteration of electronic communications |
|
| | apparatus in carrying out emergency undertaker’s works, |
|
| | |
| | (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 |
|
| | |
| | (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. |
|
| | |
| | |
| | 70 | This Part of this code— |
|
| | (a) | confers a power on operators to install and keep certain |
|
| | |
| | (b) | imposes a duty on operators to affix notices to certain |
|
| | |
| | |
| | 71 (1) | This paragraph applies where any electronic communications |
|
| | apparatus is kept on or over any land for the purposes of an |
|
| | |
| | (2) | The operator has the right, for the statutory purposes, to install and |
|
| | |
| | (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 |
|
| | |
| | (a) | any electronic communications apparatus used to support, |
|
| | carry or suspend a line installed under sub-paragraph (2), or |
|
|
|
| |
| |
|
| | (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 |
|
| | |
| | (3) | A notice attached under sub-paragraph (1) above— |
|
| | (a) | must be attached in a position where it is reasonably |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | Rights to object to certain apparatus |
|
| | |
| | 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 |
|
| | |
|
|
| |
| |
|
| | (b) | the power and procedures of the court if an objection is |
|
| | |
| | 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 |
|
| | |
| | (2) | In that case a person has a right to object under this Part of this code |
|
| | |
| | (a) | is an occupier of, or has an interest in, the tidal water or |
|
| | |
| | (b) | is not bound by a code right enabling the operator to keep |
|
| | the apparatus installed on, under or over the tidal water or |
|
| | |
| | (c) | is not a person with the benefit of a Crown interest in the |
|
| | |
| | (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 |
|
| | |
| | (4) | In that case a person has a right to object under this Part of this code |
|
| | |
| | (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 |
|
| | |
| | (a) | the person is an occupier of, or has an interest in, any |
|
| | |
| | (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. |
|
|
|
| |
| |
|
| | 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 |
|
| | |
| | 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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
|