Session 2014 - 15
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Notices of Amendments:                               

164

 

, continued

 
 

(a)    

by addressing it to a person by the description of “owner”

 

of the interest (and describing the interest and the land), and

 

(b)    

by delivering it to a person who is on the land or, if there is

 

no person on the land to whom it can be delivered, by

 

affixing it, or a copy of it, to a conspicuous object on the

 

land.

 

Enforcement and dispute resolution

 

Introductory

 

89         

This Part of this code makes provision about—

 

(a)    

the court or tribunal by which agreements and rights under

 

this code may be enforced,

 

(b)    

the meaning of references to “the court” in this code, and

 

(c)    

the power of the Secretary of State by regulations to confer

 

jurisdiction under this code on other tribunals.

 

Enforcement of agreements and rights

 

90         

An agreement under this code, and any right conferred by this code,

 

may be enforced—

 

(a)    

in the case of an agreement imposed by a court or tribunal,

 

by the court or tribunal which imposed the agreement,

 

(b)    

in the case of any agreement or right, by any court or

 

tribunal which for the time being has the power to impose

 

an agreement under this code, or

 

(c)    

in the case of any agreement or right, by any court of

 

competent jurisdiction.

 

Meaning of “the court”

 

91  (1)  

In this code “the court” means—

 

(a)    

in relation to England and Wales, the county court,

 

(b)    

in relation to Scotland, the sheriff, and

 

(c)    

in relation to Northern Ireland, a county court.

 

      (2)  

Sub-paragraph (1) is subject to provision made by regulations under

 

paragraph 92.

 

Power to confer jurisdiction on other tribunals

 

92  (1)  

The Secretary of State may by regulations provide for a function

 

conferred by this code on the court to be exercisable by any of the

 

following—

 

(a)    

in relation to England and Wales, the First-tier Tribunal;

 

(b)    

in relation to England and Wales, the Upper Tribunal;

 

(c)    

in relation to Scotland, the Lands Tribunal for Scotland;

 

(d)    

in relation to Northern Ireland, the Lands Tribunal for

 

Northern Ireland.


 
 

Notices of Amendments:                               

165

 

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      (2)  

Regulations under sub-paragraph (1) may make provision for the

 

function to be exercisable by a tribunal to which the regulations

 

apply—

 

(a)    

instead of by the court, or

 

(b)    

as well as by the court.

 

      (3)  

The Secretary of State may by regulations make provision—

 

(a)    

requiring proceedings to which regulations under sub-

 

paragraph (1) apply to be commenced in the court or in a

 

tribunal to which the regulations apply;

 

(b)    

enabling the court or such a tribunal to transfer such

 

proceedings to a tribunal which has jurisdiction in relation

 

to them by virtue of such regulations or to the court.

 

      (4)  

The power in section 402(3)(c) for regulations under sub-paragraph

 

(1) or (3) to make consequential provision includes power to make

 

provision which amends, repeals or revokes or otherwise modifies

 

the application of any enactment.

 

Applications to the court

 

93         

Regulation 3 of the Electronic Communications and Wireless

 

Telegraphy Regulations 2011 (SI 2011/1210) makes provision

 

about the time within which certain applications to the court under

 

this code must be determined.

 

Appeals in Northern Ireland

 

94         

Article 60 of the County Courts (Northern Ireland) Order 1980

 

(ordinary appeals from the county court in civil cases) is to apply in

 

relation to any determination of the court in Northern Ireland under

 

this code in the same manner as it applies in relation to any decree

 

of the court made in the exercise of the jurisdiction conferred by

 

Part 3 of that Order.

 

Supplementary provisions

 

Relationship between this code and existing law

 

95  (1)  

This code does not authorise the contravention of any provision of

 

an enactment passed or made before the coming into force of this

 

code.

 

      (2)  

Sub-paragraph (1) does not apply if and to the extent that an

 

enactment makes provision to the contrary.

 

Relationship between this code and agreements with operators

 

96  (1)  

This code does not affect any rights or liabilities arising under an

 

agreement to which an operator is a party.

 

      (2)  

Sub-paragraph (1) does not apply in relation to paragraph 61(2) to

 

(5), paragraph 95 or Parts 3 to 6 of this code.


 
 

Notices of Amendments:                               

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Ownership of property

 

97         

The ownership of property does not change merely because the

 

property is installed on or under, or affixed to, any land by any

 

person in exercise of a right conferred by or in accordance with this

 

code.

 

Conduits

 

98  (1)  

This code does not authorise an operator to do anything inside a

 

relevant conduit without the agreement of the authority with control

 

of the conduit.

 

      (2)  

The agreement of the authority with control of a public sewer is

 

sufficient in all cases to authorise an operator to exercise any of the

 

rights under this code in order to do anything wholly inside that

 

sewer.

 

      (3)  

In this paragraph the following expressions have the same

 

meanings as in section 98 of the Telecommunications Act 1984—

 

(a)    

“public sewer” and “relevant conduit”;

 

(b)    

references to the authority with control of a relevant

 

conduit.

 

Duties for OFCOM to prepare codes of practice

 

99  (1)  

OFCOM must prepare and publish a code of practice dealing

 

with—

 

(a)    

the provision of information for the purposes of this code

 

by operators to persons who occupy or have an interest in

 

land;

 

(b)    

the conduct of negotiations for the purposes of this code

 

between operators and such persons;

 

(c)    

the conduct of operators in relation to persons who occupy

 

or have an interest in land adjoining land on, under or over

 

which electronic communications apparatus is installed;

 

(d)    

such other matters relating to the operation of this code as

 

OFCOM think appropriate.

 

      (2)  

OFCOM must prepare and publish standard terms which may (but

 

need not) be used in agreements under this code.

 

      (3)  

OFCOM may from time to time—

 

(a)    

amend or replace a code of practice or standard terms

 

published under this paragraph;

 

(b)    

publish the code or terms as amended or (as the case may

 

be) the replacement code or terms.

 

      (4)  

Before publishing a code of practice or standard terms under this

 

paragraph, OFCOM must consult operators and such other persons

 

as OFCOM think appropriate.

 

      (5)  

Sub-paragraph (4) does not apply to—

 

(a)    

the publication of amendments to a code of practice or

 

standard terms, or


 
 

Notices of Amendments:                               

167

 

, continued

 
 

(b)    

the publication of a replacement code or replacement

 

terms.

 

Application of this code to the Crown

 

100(1)  

This code applies in relation to land in which there subsists, or at

 

any material time subsisted, a Crown interest as it applies in relation

 

to land in which no such interest subsists.

 

      (2)  

In this code “Crown interest” means—

 

(a)    

an interest which belongs to Her Majesty in right of the

 

Crown,

 

(b)    

an interest which belongs to Her Majesty in right of the

 

Duchy of Lancaster,

 

(c)    

an interest which belongs to the Duchy of Cornwall, or

 

(d)    

an interest which belongs to a Government department or

 

which is held in trust for Her Majesty for the purposes of a

 

Government department.

 

      (3)  

This includes, in particular—

 

(a)    

an interest which belongs to Her Majesty in right of Her

 

Majesty’s Government in Northern Ireland, and

 

(b)    

an interest which belongs to a Northern Ireland department

 

or which is held in trust for Her Majesty for the purposes of

 

a Northern Ireland department.

 

      (4)  

Where an agreement is required by this code to be given in respect

 

of any Crown interest subsisting in any land, the agreement must be

 

given by the appropriate authority.

 

      (5)  

Where a notice under this code is required to be given in relation to

 

land in which a Crown interest subsists, the notice must be given by

 

or to the appropriate authority (as the case may require).

 

      (6)  

In this paragraph “the appropriate authority” means—

 

(a)    

in the case of land belonging to Her Majesty in right of the

 

Crown, the Crown Estate Commissioners or, as the case

 

may be, the government department that has the

 

management of the land in question;

 

(b)    

in the case of land belonging to Her Majesty in right of the

 

Duchy of Lancaster, the Chancellor of the Duchy of

 

Lancaster;

 

(c)    

in the case of land belonging to the Duchy of Cornwall,

 

such person as the Duke of Cornwall, or the possessor for

 

the time being of the Duchy of Cornwall, appoints;

 

(d)    

in the case of land belonging to Her Majesty in right of Her

 

Majesty’s Government in Northern Ireland, the Northern

 

Ireland department having the management of the land in

 

question;

 

(e)    

in the case of land belonging to a government department

 

or a Northern Ireland department or held in trust for Her

 

Majesty for the purposes of a government department or a

 

Northern Ireland department, that department.


 
 

Notices of Amendments:                               

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, continued

 
 

      (7)  

Any question as to the authority that is the appropriate authority in

 

relation to any land is to be referred to the Treasury, whose decision

 

is final.

 

      (8)  

Paragraphs 51 (offence in relation to transport land rights) and

 

72(5) (offence in relation to notices on overhead apparatus) do not

 

apply where this code applies in the case of the Secretary of State

 

or a Northern Ireland department by virtue of section 106(3)(b).

 

Meaning of “occupier”

 

101(1)  

References in this code to an occupier of land are to the occupier of

 

the land for the time being.

 

      (2)  

References in this code to an occupier of land, in relation to a

 

footpath or bridleway that crosses and forms part of agricultural

 

land, are to the occupier of that agricultural land.

 

      (3)  

Sub-paragraph (4) applies in relation to land which is—

 

(a)    

a street in England and Wales or Northern Ireland, other

 

than a footpath or bridleway within sub-paragraph (2), or

 

(b)    

a road in Scotland, other than such a footpath or bridleway.

 

      (4)  

References in this code to an occupier of land—

 

(a)    

in relation to such a street in England and Wales, are to the

 

street managers within the meaning of Part 3 of the New

 

Roads and Street Works Act 1991,

 

(b)    

in relation to such a street in Northern Ireland, are to the

 

street managers within the meaning of the Street Works

 

(Northern Ireland) Order 1995 (SI 1995/3210 (SI 19)), and

 

(c)    

in relation to such a road in Scotland, are to the road

 

managers within the meaning of Part 4 of the New Roads

 

and Street Works Act 1991.

 

      (5)  

Sub-paragraph (6) applies in relation to land which—

 

(a)    

is unoccupied, and

 

(b)    

is not a street in England and Wales or Northern Ireland or

 

a road in Scotland.

 

      (6)  

References in this code to an occupier of land, in relation to land

 

within sub-paragraph (5), are to—

 

(a)    

the person (if any) who for the time being exercises powers

 

of management or control over the land, or

 

(b)    

if there is no person within paragraph (a), to every person

 

whose interest in the land would be prejudicially affected

 

by the exercise of a code right in relation to the land.

 

      (7)  

In this paragraph—

 

(a)    

“agricultural land” includes land which is being brought

 

into use for agriculture, and

 

(b)    

references in relation to England and Wales to a footpath or

 

bridleway include a restricted byway.


 
 

Notices of Amendments:                               

169

 

, continued

 
 

Arbitrations in Scotland

 

102      

Until the Arbitration (Scotland) Act 2010 is in force in relation to

 

any arbitrations carried out under or by virtue of this code, that Act

 

applies as if it were in force in relation to those arbitrations.

 

General interpretation

 

103(1)  

In this code—

 

“agriculture” and “agricultural”—

 

(l)    

in relation to England and Wales, have the same meanings as in

 

the Highways Act 1980,

 

(m)    

in relation to Scotland, have the same meanings as in the Town

 

and Country Planning (Scotland) Act 1997, and

 

(n)    

in relation to Northern Ireland, have the same meanings as in the

 

Agriculture Act (Northern Ireland) 1949;

 

“bridleway” and “footpath”—

 

(o)    

in relation to England and Wales, have the same meanings as in

 

the Highways Act 1980,

 

(p)    

in relation to Scotland, have the same meanings as Part 3 of the

 

Countryside (Scotland) Act 1967, and

 

(q)    

in relation to Northern Ireland, mean a way over which the public

 

have, by virtue of the Access to the Countryside (Northern

 

Ireland) Order 1983 (SI 1983/1895 (NI 18)), a right of way

 

(respectively) on horseback and on foot;

 

“code agreement” has the meaning given by paragraph 29(5);

 

“Crown interest” has the meaning given by paragraph 100(2) and (3);

 

“enactment” includes—

 

(r)    

an enactment comprised in subordinate legislation within the

 

meaning of the Interpretation Act 1978,

 

(s)    

an enactment comprised in, or in an instrument made under, a

 

Measure or Act of the National Assembly for Wales,

 

(t)    

an enactment comprised in, or in an instrument made under, an

 

Act of the Scottish Parliament, and

 

(u)    

an enactment comprised in, or in an instrument made under,

 

Northern Ireland legislation;

 

“land” does not include electronic communications apparatus;

 

“landowner” has the meaning given by paragraph 37(1);

 

“lease” includes (except in relation to Scotland) any leasehold tenancy

 

(whether in the nature of a head lease, sub-lease or underlease) and

 

any agreement to grant such a tenancy but not a mortgage by demise

 

or sub-demise;

 

“relevant person” has the meaning given by paragraph 19(1);

 

“restricted byway” has the same meaning as in Part 2 of the

 

Countryside and Rights of Way Act 2000:

 

“road”—

 

(v)    

in relation to Scotland, has the same meaning as in Part 4 of the

 

New Roads and Street Works Act 1991;

 

(w)    

in relation to Northern Ireland, has the same meaning as in the

 

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

 

“site provider” has the meaning given by paragraph 30(1);

 

“street”—


 
 

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, continued

 
 

(x)    

in relation to England and Wales, has the same meaning as in

 

Part 3 of the New Roads and Street Works Act 1991, and

 

(y)    

in relation to Northern Ireland, has the same meaning as in the

 

Street Works (Northern Ireland) Order 1995 (SI 1995/3210 (NI

 

19)).

 

      (2)  

In this code, references to the alteration of any apparatus include

 

references to the moving, removal or replacement of the

 

apparatus.””

 

Member’s explanatory statement

 

This introduces the electronic communications code which makes provision about the manner in

 

which electronic communications infrastructure can be installed and maintained.

 

Mr John Hayes

 

NS3

 

To move the following Schedule

 

“The electronic communications code: consequential amendments

 

Landlord and Tenant Act 1954 (c. 56)

 

1          

In section 23 of the Landlord and Tenant Act 1954 (tenancies to which

 

provisions on security of tenure for business etc tenants apply) after subsection

 

(4) insert—

 

“(5)    

This Part does not apply to a tenancy the primary purpose of which is

 

to grant code rights within the meaning of Schedule 3A to the

 

Communications Act 2003 (the electronic communications code).”

 

Landlord and Tenant Act 1987 (c. 31)

 

2          

In section 4(2) of the Landlord and Tenant Act 1987 (disposals which are not

 

relevant disposals for purposes of tenants’ right of first refusal) after paragraph

 

(da) insert—

 

“(da)    

the conferral of a code right under Schedule 3A to the

 

Communications Act 2003 (the electronic communications

 

code);”.

 

Landlord and Tenant (Covenants) Act 1995 (c. 30)

 

3          

In section 5 of the Landlord and Tenant (Covenants) Act 1995 (tenant released

 

from covenants on assignment of tenancy), after subsection (4) insert—

 

“(5)    

This section is subject to paragraph 15(4) of Schedule 3A to the

 

Communications Act 2003 (which places conditions on the release of

 

an operator from liability under an agreement granting code rights

 

under the electronic communications code).”

 

Business Tenancies (Northern Ireland) Order 1996 (SI 1996/725 (NI 5))

 

4          

In Article 4(1) of the Business Tenancies (Northern Ireland) Order 1996

 

(tenancies to which the Order does not apply) after paragraph (k) insert—

 

“(l)    

a tenancy the primary purpose of which is to grant code rights

 

within the meaning of Schedule 3A to the Communications

 

Act 2003 (the electronic communications code).”


 
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