Session 2014 - 15
Internet Publications
Other Bills before Parliament


 
 

Public Bill Committee:                               

203

 

, continued

 
 

(b)    

a designated provider of an electronic communications

 

service consisting in the distribution of a programme

 

service by means of an electronic communications

 

network.

 

      (7)  

In sub-paragraph (6)—

 

“designated” means designated by regulations made by the Secretary

 

of State;

 

“programme service” has the same meaning as in the Broadcasting

 

Act 1990.

 

Power of court to impose agreement

 

Introductory

 

18         

This Part of this code makes provision about—

 

(a)    

the circumstances in which the court can impose an

 

agreement on a person by which the person confers or is

 

otherwise bound by a code right,

 

(b)    

the test to be applied by the court in deciding whether to

 

impose such an agreement,

 

(c)    

the effect of such an agreement and its terms,

 

(d)    

the imposition of an agreement on a person on an interim or

 

temporary basis.

 

When can the court impose an agreement?

 

19  (1)  

This paragraph applies where the operator requires a person (a

 

“relevant person”) to agree—

 

(a)    

to confer a code right on the operator, or

 

(b)    

to be otherwise bound by a code right which is exercisable

 

by the operator.

 

      (2)  

The operator may give the relevant person a notice in writing—

 

(a)    

setting out the code right, and all of the other terms of the

 

agreement that the operator seeks, and

 

(b)    

stating that the operator seeks the person’s agreement to

 

those terms.

 

      (3)  

The operator may apply to the court for an order under this

 

paragraph if—

 

(a)    

the relevant person does not, before the end of 28 days

 

beginning with the day on which the notice is given, agree

 

to confer or be otherwise bound by the code right, or

 

(b)    

at any time after the notice is given, the relevant person

 

gives notice in writing to the operator that the person does

 

not agree to confer or be otherwise bound by the code right.

 

      (4)  

An order under this paragraph is one which imposes on the operator

 

and the relevant person an agreement between them which—

 

(a)    

confers the code right on the operator, or

 

(b)    

provides for the code right to bind the relevant person.


 
 

Public Bill Committee:                               

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, continued

 
 

What is the test to be applied by the court?

 

20  (1)  

Subject to sub-paragraph (5), the court may make an order under

 

paragraph 19 if (and only if) the court thinks that both of the

 

following conditions are met.

 

      (2)  

The first condition is that the prejudice caused to the relevant

 

person by the order is capable of being adequately compensated by

 

money.

 

      (3)  

The second condition is that the public benefit likely to result from

 

the making of the order outweighs the prejudice to the relevant

 

person.

 

      (4)  

In deciding whether the second condition is met, the court must

 

have regard to the public interest in access to a choice of high

 

quality electronic communications services.

 

      (5)  

The court may not make an order under paragraph 19 if it thinks that

 

the relevant person intends to redevelop all or part of the land to

 

which the code right would relate, or any neighbouring land, and

 

could not reasonably do so if the order were made.

 

What is the effect of an agreement imposed under paragraph 19?

 

21         

An agreement imposed by an order under paragraph 19 takes effect

 

for all purposes of this code as an agreement under Part 2 of this

 

code between the operator and the relevant person.

 

What are the terms of an agreement imposed under paragraph 19?

 

22  (1)  

An order under paragraph 19 may impose an agreement which

 

gives effect to the code right sought by the operator with such

 

modifications as the court thinks appropriate.

 

      (2)  

An order under paragraph 19 must require the agreement to contain

 

such terms as the court thinks appropriate, subject to sub-

 

paragraphs (3) to (8).

 

      (3)  

The terms of the agreement must include terms as to the payment of

 

consideration by the operator to the relevant person for the relevant

 

person’s agreement to confer or be bound by the code right (as the

 

case may be).

 

      (4)  

Paragraph 23 makes provision about the determination of

 

consideration under sub-paragraph (3).

 

      (5)  

The terms of the agreement must include the terms the court thinks

 

appropriate for ensuring that the least possible loss and damage is

 

caused by the exercise of the code right to persons who—

 

(a)    

occupy the land in question,

 

(b)    

own interests in that land, or

 

(c)    

are from time to time on that land.

 

      (6)  

Sub-paragraph (5) applies in relation to a person regardless of

 

whether the person is a party to the agreement.

 

      (7)  

The terms of the agreement must include terms specifying for how

 

long the code right conferred by the agreement is exercisable.


 
 

Public Bill Committee:                               

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, continued

 
 

      (8)  

The court must determine whether the terms of the agreement

 

should include a term—

 

(a)    

permitting termination of the agreement (and, if so, in what

 

circumstances);

 

(b)    

enabling the relevant person to require the operator to

 

reposition or temporarily to remove the electronic

 

communications equipment to which the agreement relates

 

(and, if so, in what circumstances).

 

How is consideration to be determined under paragraph 22?

 

23  (1)  

The amount of consideration payable by an operator to a relevant

 

person under an agreement imposed by an order under paragraph 19

 

must be an amount or amounts representing the market value of the

 

relevant person’s agreement to confer or be bound by the code right

 

(as the case may be).

 

      (2)  

For this purpose the market value of a person’s agreement to confer

 

or be bound by a code right is the amount that, at the date the market

 

value is assessed, a willing buyer would pay a willing seller for the

 

agreement—

 

(a)    

in a transaction at arm’s length,

 

(b)    

on the basis that the buyer and seller were acting prudently

 

and with full knowledge of the transaction, and

 

(c)    

as if the transaction were subject to the other provisions of

 

the agreement imposed by the order under paragraph 19.

 

      (3)  

The market value—

 

(a)    

must be assessed on the basis of the value to the operator of

 

the agreement and having regard to the use which the

 

operator intends to make of the land in question (even if the

 

operator may only use the land in that way pursuant to

 

powers conferred by an enactment), and

 

(b)    

must not be assessed on the basis of the value of the right

 

or agreement to the relevant person.

 

      (4)  

The market value must be assessed on the assumption that—

 

(a)    

there is more than one site which the operator could use for

 

the purpose for which the operator intends to use the land

 

in question (whether or not that is actually the case), and

 

(b)    

paragraphs 15 and 16 (assignment of code rights and

 

upgrading and sharing of apparatus) do not apply to the

 

code right or any electronic communications apparatus to

 

which the code right could apply.

 

      (5)  

The terms of the agreement may provide for consideration to be

 

payable—

 

(a)    

as a lump sum or periodically,

 

(b)    

on the occurrence of a specified event or events, or

 

(c)    

in such other form or at such other time or times as the court

 

may direct.


 
 

Public Bill Committee:                               

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, continued

 
 

Power to amend paragraph 23

 

24  (1)  

The Secretary of State may by regulations amend paragraph 23 so

 

that it requires that the amount of consideration referred to in sub-

 

paragraph (1) of that paragraph—

 

(a)    

must be assessed on the basis of the value of the right or

 

agreement to the relevant person, and

 

(b)    

must not be assessed on the basis of the value to the

 

operator of the right or agreement or having regard to the

 

use which the operator intends to make of the land in

 

question.

 

      (2)  

Regulations under sub-paragraph (1) may also repeal paragraph

 

23(4).

 

      (3)  

Before making regulations under this paragraph the Secretary of

 

State must consult such persons as appear to the Secretary of State

 

to be appropriate.

 

What rights to the payment of compensation are there?

 

25  (1)  

If the court makes an order under paragraph 19 the court may also

 

order the operator to pay compensation to the relevant person for

 

any loss or damage that has been sustained or will be sustained by

 

that person as a result of the exercise of the code right to which the

 

order relates.

 

      (2)  

An order under sub-paragraph (1) may be made—

 

(a)    

at the time the court makes an order under paragraph 19, or

 

(b)    

at any time afterwards, on the application of the relevant

 

person.

 

      (3)  

An order under sub-paragraph (1) may—

 

(a)    

specify the amount of compensation to be paid by the

 

operator, or

 

(b)    

give directions for the determination of any such amount.

 

      (4)  

Directions under sub-paragraph (3)(b) may provide—

 

(a)    

for the amount of compensation to be agreed between the

 

operator and the relevant person;

 

(b)    

for any dispute about that amount to be determined by

 

arbitration.

 

      (5)  

An order under this paragraph may provide for the operator—

 

(a)    

to make a lump sum payment,

 

(b)    

to make periodical payments,

 

(c)    

to make a payment or payments on the occurrence of an

 

event or events, or

 

(d)    

to make a payment or payments in such other form or at

 

such other time or times as the court may direct.

 

      (6)  

Paragraph 81 makes further provision about compensation in the

 

case of an order under paragraph 19.


 
 

Public Bill Committee:                               

207

 

, continued

 
 

Interim code rights

 

26  (1)  

An operator may apply to the court for an order which imposes on

 

the operator and that person, on an interim basis, an agreement

 

between them which—

 

(a)    

confers a code right on the operator, or

 

(b)    

provides for a code right to bind that person.

 

      (2)  

An order under this paragraph imposes an agreement on the

 

operator and a person on an interim basis if it provides for them to

 

be bound by the agreement—

 

(a)    

for the period specified in the order, or

 

(b)    

until the occurrence of an event specified in the order.

 

      (3)  

The court may make an order under this paragraph if (and only if)

 

the operator has served a notice under paragraph 19(2) stating that

 

an agreement is sought on an interim basis and—

 

(a)    

the operator and that person have agreed to the making of

 

the order and the terms of the agreement imposed by it, or

 

(b)    

the court thinks that there is a good arguable case that the

 

test in paragraph 20 for the making of an order under

 

paragraph 19 is met.

 

      (4)  

Subject to sub-paragraphs (5) and (6), the following provisions

 

apply in relation to an order under this paragraph and an agreement

 

imposed by it as they apply in relation to an order under paragraph

 

19 and an agreement imposed by it—

 

(a)    

paragraph 19(3) (time at which operator may apply for

 

agreement to be imposed);

 

(b)    

paragraph 21 (effect of agreement imposed under

 

paragraph 19);

 

(c)    

in paragraph 22 (terms of agreement imposed under

 

paragraph 19), sub-paragraphs (1) to (6) and (8);

 

(d)    

paragraph 23 (payment of consideration);

 

(e)    

paragraph 25 (payment of compensation);

 

(f)    

paragraph 81 (compensation where agreement imposed).

 

      (5)  

The court may make an order under this paragraph even though the

 

period mentioned in paragraph 19(3)(a) has not elapsed (and

 

paragraph 19(3)(b) does not apply) if the court thinks that the order

 

should be made as a matter of urgency.

 

      (6)  

Paragraphs 22, 23 and 25 apply by virtue of sub-paragraph (4) as

 

if—

 

(a)    

references to the relevant person were to the person

 

mentioned in sub-paragraph (1) of this paragraph, and

 

(b)    

the duty in paragraph 22 to include terms as to the payment

 

of consideration to that person in an agreement were a

 

power to do so.

 

      (7)  

Sub-paragraph (8) applies if—

 

(a)    

an order has been made under this paragraph imposing an

 

agreement on an operator and a person in respect of any

 

land, and


 
 

Public Bill Committee:                               

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, continued

 
 

(b)    

on a subsequent application under paragraph 19 for an

 

order to be made imposing an agreement on the operator

 

and the person in respect of that land, the court decides not

 

to make such an order.

 

      (8)  

From the time when the court’s decision is made, that person has

 

the right to require the operator to remove any electronic

 

communications apparatus placed on the land under the agreement

 

imposed under this paragraph.

 

Temporary code rights

 

27  (1)  

This paragraph applies where—

 

(a)    

an operator gives a notice under paragraph 19(2) to a

 

person in respect of any land,

 

(b)    

the notice requires that person’s agreement in respect of a

 

right which is to be exercisable (in whole or in part) in

 

relation to electronic communications apparatus which is

 

already installed on, under or over the land,

 

(c)    

the notice states that the agreement is sought on a

 

temporary basis, and

 

(d)    

the person has the right to require the removal of the

 

apparatus as a result of paragraph 37 but, as a result of the

 

operation of paragraph 39, the operator is not required to

 

remove the apparatus.

 

      (2)  

The court may, on the application of the operator, impose on the

 

operator and the person an agreement between them which confers

 

on the operator such temporary code rights as appear to the court

 

reasonably necessary for securing the objective in sub-paragraph

 

(3).

 

      (3)  

That objective is that, until proceedings under paragraph 19 or 39

 

are determined, the service provided by the operator’s network is

 

maintained and the apparatus is properly adjusted and kept in

 

repair.

 

      (4)  

Subject to sub-paragraphs (5) and (6), the following provisions

 

apply in relation to an order under this paragraph and an agreement

 

imposed by it as they apply in relation to an order under paragraph

 

19 and an agreement imposed by it—

 

(a)    

paragraph 19(3) (time at which operator may apply for

 

agreement to be imposed);

 

(b)    

paragraph 21 (effect of agreement imposed under

 

paragraph 19);

 

(c)    

in paragraph 22 (terms of agreement imposed under

 

paragraph 19), sub-paragraphs (1) to (6) and (8);

 

(d)    

paragraph 23 (payment of consideration);

 

(e)    

paragraph 25 (payment of compensation);

 

(f)    

paragraph 81 (compensation where agreement imposed).

 

      (5)  

The court may make an order under this paragraph even though the

 

period mentioned in paragraph 19(3)(a) has not elapsed (and

 

paragraph 19(3)(b) does not apply) if the court thinks that the order

 

should be made as a matter of urgency.


 
 

Public Bill Committee:                               

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, continued

 
 

      (6)  

Paragraphs 22, 23 and 25 apply by virtue of sub-paragraph  (4) as

 

if—

 

(a)    

references to the relevant person were to the person

 

mentioned in sub-paragraph (1) of this paragraph, and

 

(b)    

the duty in paragraph 22 to include terms as to the payment

 

of consideration to that person in an agreement were a

 

power to do so.

 

      (7)  

Sub-paragraph (8) applies where, in the course of the proceedings

 

under paragraph 19, it is shown that a person with an interest in the

 

land was entitled to require the removal of the apparatus

 

immediately after it was installed.

 

      (8)  

The court must, in determining for the purposes of paragraph 19

 

whether the apparatus should continue to be kept on, under or over

 

the land, disregard the fact that the apparatus has already been

 

installed there.

 

Termination and modification of agreements

 

Introductory

 

28         

This Part of this code makes provision about—

 

(a)    

the continuation of code rights after the time at which they

 

cease to be exercisable under an agreement,

 

(b)    

the procedure for bringing an agreement to an end,

 

(c)    

the procedure for changing an agreement relating to code

 

rights, and

 

(d)    

the arrangements for the making of payments under an

 

agreement whilst disputes under this Part are resolved.

 

Application of this Part

 

29  (1)  

This Part of this code applies to an agreement under Part 2 of this

 

code, subject to sub-paragraphs (2) to (4).

 

      (2)  

This Part of this code does not apply to a lease of land in England

 

and Wales if—

 

(a)    

its primary purpose is not to grant code rights, and

 

(b)    

it is a lease to which Part 2 of the Landlord and Tenant Act

 

1954 (security of tenure for business, professional and

 

other tenants) applies.

 

      (3)  

In determining whether a lease is one to which Part 2 of the

 

Landlord and Tenant Act 1954 applies, any agreement under

 

section 38A (agreements to exclude provisions of Part 2) of that Act

 

is to be disregarded.

 

      (4)  

This Part of this code does not apply to a lease of land in Northern

 

Ireland if—

 

(a)    

its primary purpose is not to grant code rights, and

 

(b)    

it is a lease to which the Business Tenancies (Northern

 

Ireland) Order 1996 (SI 1996/725 (NI 5)) applies.


 
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