House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

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      (5)
An agreement to which this Part of this code applies is referred to

in this code as a “code agreement”.

Continuation of code rights

30  (1)
Sub-paragraph (2) applies if—

(a)
a code right is conferred by, or is otherwise binding on, a

person (the “site provider”) as the result of a code

agreement, and

(b)
under the terms of the agreement—

(i)
the right ceases to be exercisable or the site

provider ceases to be bound by it, or

(ii)
the site provider may bring the code agreement to

an end so far as it relates to that right.

      (2)
Where this sub-paragraph applies the code agreement continues so

that—

(a)
the operator may continue to exercise that right, and

(b)
the site provider continues to be bound by the right.

      (3)
Sub-paragraph (2) does not apply to a code right which is conferred

by, or is otherwise binding on, a person by virtue of an order under

paragraph 26 (interim code rights) or 27 (temporary code rights).

      (4)
Sub-paragraph (2) is subject to the following provisions of this Part

of this code.

How may a person bring a code agreement to an end?

31  (1)
A site provider who is a party to a code agreement may bring the

agreement to an end by giving a notice in accordance with this

paragraph to the operator who is a party to the agreement.

      (2)
The notice must—

(a)
comply with paragraph 86 (notices given by persons other

than operators),

(b)
specify the date on which the site provider proposes the

code agreement should come to an end, and

(c)
state the ground on which the site provider proposes to

bring the code agreement to an end.

      (3)
The date specified under sub-paragraph (2)(b) must fall—

(a)
after the end of the period of 18 months beginning with the

day on which the notice is given, and

(b)
after the time at which, apart from paragraph 30, the code

right to which the agreement relates would have ceased to

be exercisable or to bind the site provider or at a time when,

apart from that paragraph, the code agreement could have

been brought to an end by the site provider.

      (4)
The ground stated under sub-paragraph (2)(c) must be one of the

following—

(a)
that the code agreement ought to come to an end as a result

of substantial breaches by the operator of its obligations

under the agreement;

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(b)
that the code agreement ought to come to an end because of

persistent delays by the operator in making payments to the

site provider under the agreement;

(c)
that the site provider intends to redevelop all or part of the

land to which the code agreement relates, or any

neighbouring land, and could not reasonably do so unless

the code agreement comes to an end;

(d)
that the operator is not entitled to the code agreement

because the test under paragraph 20 for the imposition of

the agreement on the site provider is not met.

What is the effect of a notice under paragraph 31?

32  (1)
Where a site provider gives a notice under paragraph 31, the code

agreement to which it relates comes to an end in accordance with

the notice unless—

(a)
within the period of three months beginning with the day on

which the notice is given, the operator gives the site

provider a counter-notice in accordance with sub-

paragraph (3), and

(b)
within the period of three months beginning with the day on

which the counter-notice is given, the operator applies to

the court for an order under paragraph 34.

      (2)
Sub-paragraph (1) does not apply if the operator and the site

provider agree to the continuation of the code agreement.

      (3)
The counter-notice must state—

(a)
that the operator does not want the existing code agreement

to come to an end,

(b)
that the operator wants the site provider to agree to confer

or be otherwise bound by the existing code right on new

terms, or

(c)
that the operator wants the site provider to agree to confer

or be otherwise bound by a new code right in place of the

existing code right.

      (4)
If, on an application under sub-paragraph (1)(b), the court decides

that the site provider has established any of the grounds stated in the

site provider’s notice under paragraph 31, the court must order that

the code agreement comes to an end in accordance with the order.

      (5)
Otherwise the court must make one of the orders specified in

paragraph 34.

How may a party to a code agreement require a change to the terms of an

agreement which has expired?

33  (1)
An operator or site provider who is a party to a code agreement by

which a code right is conferred by or otherwise binds the site

provider may, by notice in accordance with this paragraph, require

the other party to the agreement to agree that—

(a)
the code agreement should have effect with modified

terms,

(b)
where under the code agreement more than one code right

is conferred by or otherwise binds the site provider, that the

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agreement should no longer provide for an existing code

right to be conferred by or otherwise bind the site provider,

(c)
the code agreement should—

(i)
confer an additional code right on the operator, or

(ii)
provide that the site provider is otherwise bound by

an additional code right, or

(d)
the existing code agreement should be terminated and a

new agreement should have effect between the parties

which—

(i)
confers a code right on the operator, or

(ii)
provides for a code right to bind the site provider.

      (2)
The notice must—

(a)
comply with paragraph 85 or 86, according to whether the

notice is given by an operator or a site provider,

(b)
specify—

(i)
the day from which it is proposed that the modified

terms should have effect,

(ii)
the day from which the agreement should no

longer provide for the code right to be conferred by

or otherwise bind the site provider,

(iii)
the day from which it is proposed that the

additional code right should be conferred by or

otherwise bind the site provider, or

(iv)
the day on which it is proposed the existing code

agreement should be terminated and from which a

new agreement should have effect,


(as the case may be), and

(c)
set out details of—

(i)
the proposed modified terms,

(ii)
the code right it is proposed should no longer be

conferred by or otherwise bind the site provider,

(iii)
the proposed additional code right, or

(iv)
the proposed terms of the new agreement,


(as the case may be).

      (3)
The day specified under sub-paragraph (2)(b) must fall—

(a)
after the end of the period of 6 months beginning with the

day on which the notice is given, and

(b)
after the time at which, apart from paragraph 30, the code

right would have ceased to be exercisable or to bind the site

provider or at a time when, apart from that paragraph, the

code agreement could have been brought to an end by the

site provider.

      (4)
Sub-paragraph (5) applies if, after the end of the period of 6 months

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

and the site provider have not reached agreement on the proposals

in the notice.

      (5)
Where this paragraph applies, the operator or the site provider may

apply to the court for the court to make an order under paragraph 34.

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What orders may a court make on an application under paragraph 32 or 33?

34  (1)
This paragraph sets out the orders that the court may make on an

application under paragraph 32(1)(b) or 33(5).

      (2)
The court may order that the operator may continue to exercise the

existing code right in accordance with the existing code agreement

for such period as may be specified in the order (so that the code

agreement has effect accordingly).

      (3)
The court may order the modification of the terms of the code

agreement relating to the existing code right.

      (4)
Where under the code agreement more than one code right is

conferred by or otherwise binds the site provider, the court may

order that the code agreement has effect so that it no longer provides

for an existing code right to be conferred by or otherwise bind the

site provider.

      (5)
The court may order that the code agreement relating to the existing

code right has effect so that—

(a)
it confers an additional code right on the operator, or

(b)
it provides that the site provider is otherwise bound by an

additional code right.

      (6)
The court may order the termination of the code agreement relating

to the existing code right (subject to sub-paragraph (10)), and order

the operator and the site provider to enter into a new agreement

which—

(a)
confers a code right on the operator, or

(b)
provides for a code right to bind the site provider.

      (7)
The terms of the new agreement are to be such as are agreed

between the operator and site provider.

      (8)
If the operator and the site provider are unable to agree on the terms

of the new agreement, the court must on an application by either

party make an order specifying those terms.

      (9)
Paragraphs 22(2) to (8), 23, 25 and 81 apply to an order under sub-

paragraph (8) as they apply to an order under paragraph 19; but the

court must also have regard to the terms of the existing code

agreement in determining the terms of the new agreement.

    (10)
The existing code agreement continues until the new agreement

takes effect.

    (11)
This code applies to the new agreement as if it were an agreement

under Part 2 of this code.

    (12)
In determining which order to make under this paragraph, the court

must have regard to all the circumstances of the case, and in

particular to—

(a)
the operator’s business and technical needs,

(b)
the use that the site provider is making of the land to which

the existing code agreement relates,

(c)
any duties imposed on the site provider by an enactment,

and

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(d)
the amount of consideration payable by the operator to the

site provider under the existing code agreement.

    (13)
Where the court makes an order under this paragraph, it may also

order the operator to pay the site provider the amount (if any) by

which A exceeds B, where—

(a)
A is the amount of consideration that would have been

payable by the operator to the site provider for the relevant

period if that amount had been assessed on the same basis

as the consideration payable as the result of order, and

(b)
B is the amount of consideration payable by the operator to

the site provider for the relevant period.

    (14)
In sub-paragraph (13) the relevant period is the period (if any)

that—

(a)
begins on the date on which, apart from the operation of

paragraph 30, the code right would have ceased to be

exercisable or to bind the site provider or from which, apart

from that paragraph, the code agreement could have been

brought to an end by the site provider, and

(b)
ends on the date on which the order is made.

What arrangements for payment can be made pending determination of the

application?

35  (1)
This paragraph applies where—

(a)
a code right continues to be exercisable under paragraph 30

after the time at which, apart from the operation of that

paragraph, the code right would have ceased to be

exercisable or to bind the site provider or from which, apart

from that paragraph, the code agreement could have been

brought to an end by the site provider, and

(b)
the operator or the site provider has applied to the court for

an order under paragraph 32(1)(b) or 33(5).

      (2)
The site provider may—

(a)
agree with the operator that, until the application has been

finally determined, the site provider will continue to

receive the payments of consideration from the operator to

which the site provider is entitled under the agreement

relating to the existing code right,

(b)
agree with the operator that, until that time, the site

provider will receive different payments of consideration

under that agreement, or

(c)
apply to the court for the court to determine the payments

of consideration to be made by the operator to the site

provider under that agreement until that time.

      (3)
The court must determine the payments under sub-paragraph (3)(c)

on the basis set out in paragraph 23 (calculation of consideration).

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Rights to require removal of electronic communications apparatus

Introductory

36
This Part of this code makes provision about—

(a)
the cases in which a person with an interest in land has the

right to require the removal of electronic communications

apparatus,

(b)
the means by which a person can discover whether

apparatus is on land pursuant to a code right, and

(c)
the means by which a right to require removal can be

enforced.

When does a person have the right to require removal of electronic

communications apparatus?

37  (1)
A person with an interest in land (a “landowner”) has the right to

require the removal of electronic communications apparatus on,

under or over the land if (and only if) one or more of the following

conditions are met.

      (2)
The first condition is that the landowner has never been bound by a

code right entitling an operator to keep the apparatus on, under or

over the land.


This is subject to sub-paragraph (4).

      (3)
The second condition is that a code right entitling an operator to

keep the apparatus on, under or over the land has come to an end or

has ceased to bind the landowner—

(a)
as the result of paragraph 32(1), or

(b)
as the result of an order under paragraph 32(4) or 34(4) or

(6).


This is subject to sub-paragraph (4).

      (4)
The landowner does not meet the first or second condition if—

(a)
the land is occupied by a person who—

(i)
conferred a code right (which is in force) entitling

an operator to keep the apparatus on, under or over

the land, or

(ii)
is otherwise bound by such a right, and

(b)
that code right was not conferred in breach of a covenant

enforceable by the landowner.

      (5)
The third condition is that—

(a)
an operator has the benefit of a code right entitling the

operator to keep the apparatus on, under or over the land,

but

(b)
the apparatus is not, or is no longer, used for the purposes

of the operator’s network, and

(c)
there is no reasonable likelihood that the apparatus will be

be used for that purpose.

      (6)
The fourth condition is that—

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(a)
this code has ceased to apply to a person so that the person

is no longer entitled under this code to keep the apparatus

on, under or over the land,

(b)
the retention of the apparatus on, under or over the land is

not authorised by a scheme contained in an order under

section 117, and

(c)
there is no other person with a right conferred by or under

this code to keep the apparatus on, under or over the land.

      (7)
The fifth condition is that—

(a)
the apparatus was kept on, under or over the land pursuant

to—

(i)
a transport land right (see Part 7), or

(ii)
a street work right (see Part 8),

(b)
that right has ceased to be exercisable in relation to the land

by virtue of paragraph 50(9) or 56(8), and

(c)
there is no other person with a right conferred by or under

this code to keep the apparatus on, under or over the land.

How does a person find out whether apparatus is on land pursuant to a code

right?

38  (1)
A landowner may by notice require an operator to disclose

whether—

(a)
the operator owns electronic communications apparatus on,

under or over land in which the landowner has an interest

or uses such apparatus for the purposes of the operator’s

network, or

(b)
the operator has the benefit of a code right entitling the

operator to keep electronic communications apparatus on,

under or over land in which the landowner has an interest.

      (2)
The notice must comply with paragraph 86 (notices given by

persons other than operators).

      (3)
Sub-paragraph (4) applies if—

(a)
the operator does not, before the end of the period of three

months beginning with the date on which the notice under

sub-paragraph (1) was given, give a notice to the landowner

that—

(i)
complies with paragraph 85 (notices given by

operators), and

(ii)
discloses the information sought by the landowner,

(b)
the landowner takes action under paragraph 39 to enforce

the removal of the apparatus, and

(c)
it is subsequently established that—

(i)
the operator owns the apparatus or uses it for the

purposes of the operator’s network, and

(ii)
the operator has the benefit of a code right entitling

the operator to keep the apparatus on, under or over

the land.



© Parliamentary copyright	Revised 13 January 2015