Session 2014 - 15
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Other Bills before Parliament


 
 

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, continued

 
 

      (4)  

The operator must nevertheless bear the costs of any action taken

 

by the landowner under paragraph 39 to enforce the removal of the

 

apparatus.

 

How does a person enforce removal of apparatus?

 

39  (1)  

A landowner who has the right to require the removal of electronic

 

communications apparatus on, under or over land may, in

 

accordance with this paragraph, require the operator whose

 

apparatus it is—

 

(a)    

to remove the apparatus, and

 

(b)    

to restore the land to its condition before the apparatus was

 

placed on, under or over the land.

 

      (2)  

The landowner may give a notice to the operator requiring the

 

operator—

 

(a)    

to remove the apparatus, and

 

(b)    

to restore the land to its condition before the apparatus was

 

placed on, under or over the land.

 

      (3)  

The notice must—

 

(a)    

comply with paragraph 86 (notices given by persons other

 

than operators), and

 

(b)    

specify the period within which the operator must complete

 

the works.

 

      (4)  

The period specified under sub-paragraph (3) must be a reasonable

 

one.

 

      (5)  

Sub-paragraph (6) applies if, within the period of 28 days beginning

 

with the day on which the notice was given, the landowner and the

 

operator do not reach agreement on any of the following matters—

 

(a)    

that the operator will remove the apparatus;

 

(b)    

that the operator will restore the land to its condition before

 

the apparatus was placed on, under or over the land;

 

(c)    

the time at which or period within which the apparatus will

 

be removed;

 

(d)    

the time at which or period within which the land will be

 

restored.

 

      (6)  

The landowner may make an application to the court for—

 

(a)    

an order under paragraph 40(1) (order requiring operator to

 

sell apparatus etc), or

 

(b)    

an order under paragraph 40(2) (order enabling landowner

 

to sell apparatus etc).

 

      (7)  

If the court makes an order under paragraph 40(1), but the operator

 

does not comply with the agreement imposed on the operator and

 

the landowner by virtue of paragraph 40(5), the landowner may

 

make an application to the court for an order under paragraph 40(2).

 

What orders may the court make on an application under paragraph 39?

 

40  (1)  

An order under this paragraph is an order that the operator must,

 

within the period specified in the order—

 

(a)    

remove the apparatus, and


 
 

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, continued

 
 

(b)    

restore the land to its condition before the apparatus was

 

placed on, under or over the land.

 

      (2)  

An order under this paragraph is an order that the landowner may

 

do any of the following—

 

(a)    

remove or arrange the removal of the electronic

 

communications apparatus;

 

(b)    

sell any apparatus so removed;

 

(c)    

recover the costs of any action under paragraph (a) or (b)

 

from the operator;

 

(d)    

recover from the operator the costs of restoring the land to

 

its condition before the apparatus was placed on, under or

 

over the land;

 

(e)    

retain the proceeds of sale of the apparatus to the extent that

 

these do not exceed the costs incurred by the landowner as

 

mentioned in paragraph (c) or (d).

 

      (3)  

An order under this paragraph may require the operator to pay

 

compensation to the landowner for any loss or damage suffered by

 

the landowner as a result of the presence of the apparatus on the

 

land during the period when the landowner had the right to require

 

the removal of the apparatus from the land but was not able to

 

exercise that right.

 

      (4)  

Paragraph 81 makes further provision about compensation under

 

sub-paragraph (3).

 

      (5)  

An order under sub-paragraph (1) takes effect as an agreement

 

between the operator and the landowner that—

 

(a)    

requires the operator to take the steps specified in the order,

 

and

 

(b)    

otherwise contains such terms as the court may so specify.

 

Conferral of transport land rights and their exercise

 

Introductory

 

41         

This Part of this code makes provision about—

 

(a)    

the conferral of transport land rights, and

 

(b)    

the exercise of transport land rights.

 

Transport land and transport undertakers

 

42         

In this Part of this code—

 

“transport land” means land which is used wholly or mainly—

 

(e)    

as a railway, canal or tramway, or

 

(f)    

in connection with a railway, canal or tramway on the land;

 

“transport undertaker”, in relation to transport land, means the person

 

carrying on the railway, canal or tramway undertaking.


 
 

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Conferral of transport land rights

 

43  (1)  

An operator may exercise a transport land right for the statutory

 

purposes.

 

      (2)  

But that is subject to the following provisions of this Part of this

 

code.

 

The transport land rights

 

44  (1)  

For the purposes of this code a “transport land right”, in relation to

 

an operator, is—

 

(a)    

a right to cross any transport land with a line;

 

(b)    

a right, for the purposes of crossing any transport land with

 

a line—

 

(i)    

to install and keep the line and any other electronic

 

communications apparatus on, under or over the

 

transport land;

 

(ii)    

to inspect, maintain, adjust, alter, repair, upgrade

 

or operate electronic communications apparatus

 

on, under or over the transport land;

 

(iii)    

a right to carry out any works on the transport land

 

for or in connection with the exercise of a right

 

under sub-paragraph (i) or (ii);

 

(iv)    

a right to enter the transport land to inspect,

 

maintain, adjust, alter, repair, upgrade or operate

 

the line or other electronic communications

 

apparatus.

 

      (2)  

A line installed in the exercise of a transport land right need not

 

cross the transport land in question by a direct route or the shortest

 

route from the point at which the line enters the transport land.

 

      (3)  

But the line must not cross the transport land by any route which, in

 

the horizontal plane, exceeds that shortest route by more than 400

 

metres.

 

      (4)  

The transport land rights do not authorise an operator to install a

 

line or other electronic communications apparatus in any position

 

on transport land in which the line or other apparatus would

 

interfere with traffic on the railway, canal or tramway.

 

Non-emergency works: when can an operator exercise the transport land rights?

 

45  (1)  

Before exercising a transport land right in order to carry out non-

 

emergency works, the operator must give the transport undertaker

 

notice of the intention to carry out the works (“notice of proposed

 

works”).

 

      (2)  

Notice of proposed works must contain a plan and section of the

 

works; but, if the transport undertaker agrees, the notice may

 

instead contain a description of the works (whether or not in the

 

form of a diagram).

 

      (3)  

The operator must not begin the proposed works until the notice

 

period has ended.


 
 

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, continued

 
 

      (4)  

But the operator’s power to carry out the proposed works is subject

 

to paragraph 46.

 

      (5)  

In this paragraph—

 

“non-emergency works” means any works which are not emergency

 

works under paragraph 47;

 

“notice period” means the period of 28 days beginning with the day on

 

which notice of proposed works is given.

 

What is the effect of the transport undertaker giving notice of objection to the

 

operator?

 

46  (1)  

This paragraph applies if an operator gives a transport undertaker

 

notice of proposed works under paragraph 45.

 

      (2)  

The transport undertaker may, within the notice period, give the

 

operator notice objecting to the proposed works (“notice of

 

objection”).

 

      (3)  

If notice of objection is given, the operator or the transport

 

undertaker may, within the arbitration notice period, give the other

 

notice that the objection is to be referred to arbitration under

 

paragraph 48 (“arbitration notice”).

 

      (4)  

In a case where notice of objection is given, the operator may

 

exercise a transport land right in order to carry out the proposed

 

works only if they are permitted under sub-paragraph (5) or (6).

 

      (5)  

Works are permitted in a case where—

 

(a)    

the arbitration notice period has ended, and

 

(b)    

no arbitration notice has been given.

 

      (6)  

In a case where arbitration notice has been given, works are

 

permitted in accordance with an award made on the arbitration.

 

      (7)  

In this paragraph—

 

(a)    

“arbitration notice period” means the period of 28 days

 

beginning with the day on which objection notice is given;

 

(b)    

expressions defined in paragraph 45 have the same

 

meanings as in that paragraph.

 

Emergency works: when can an operator exercise the transport land rights?

 

47  (1)  

An operator may exercise a transport land right in order to carry out

 

emergency works.

 

      (2)  

If the operator exercises a transport land right to carry out

 

emergency works, the operator must give the transport undertaker

 

an emergency works notice as soon as reasonably practicable after

 

starting the works.

 

      (3)  

An “emergency works notice” is a notice which—

 

(a)    

identifies the emergency works;

 

(b)    

contains a statement of the reason why the works are

 

emergency works; and

 

(c)    

contains either—


 
 

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, continued

 
 

(i)    

the matters which would be included in a notice of

 

proposed works (if one were given in relation to

 

the works), or

 

(ii)    

a reference to a notice of proposed works which

 

relates to the works that are emergency works (if

 

one has been given).

 

      (4)  

A transport undertaker may, within the compensation notice period,

 

give the operator notice which requires the operator to pay

 

compensation for loss or damage sustained in consequence of the

 

carrying out of emergency works (“compensation notice”).

 

      (5)  

The operator must pay the transport undertaker any compensation

 

which is required by a compensation notice (if given within the

 

compensation notice period).

 

      (6)  

The amount of compensation payable under sub-paragraph (5) is to

 

be agreed between the operator and the transport undertaker.

 

      (7)  

But if—

 

(a)    

the compensation agreement period has ended, and

 

(b)    

the operator and the transport undertaker have not agreed

 

the amount of compensation payable under sub-paragraph

 

(6),

 

            

the operator or the transport undertaker may give the other notice

 

that the disagreement is to be referred to arbitration under paragraph

 

48.

 

      (8)  

A reference in this paragraph to emergency works includes a

 

reference to any works which are included in a notice of proposed

 

works but become emergency works before the operator is

 

authorised by paragraph 46 or 47 to carry them out.

 

      (9)  

In this paragraph—

 

“compensation agreement period” means the period of 28 days

 

beginning with the day on which a compensation notice is given;

 

“compensation notice period” means the period of 28 days beginning

 

with the day on which an emergency works notice is given;

 

“emergency works” means works carried out in order to stop anything

 

already occurring, or to prevent anything imminent from occurring,

 

which is likely to cause—

 

(g)    

danger to persons or property,

 

(h)    

the interruption of any service provided by the operator’s

 

network,

 

(i)    

substantial loss to the operator,

 

and any other works which it is reasonable (in all the

 

circumstances) to carry out with those works;

 

“notice of proposed works” means such notice given under paragraph

 

45.

 

What happens if a dispute about the transport land rights is referred to

 

arbitration?

 

48  (1)  

This paragraph applies if notice is given under paragraph 46(3) or

 

47(7) that the following matter (the “matter in dispute”) is to be

 

referred to arbitration—


 
 

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, continued

 
 

(a)    

an objection to proposed works;

 

(b)    

a disagreement about an amount of compensation.

 

      (2)  

The matter in dispute is to be referred to the arbitration of a single

 

arbitrator appointed—

 

(a)    

by agreement between the parties, or

 

(b)    

in the absence of such agreement, by the President of the

 

Institution of Civil Engineers.

 

      (3)  

If the matter in dispute is an objection to proposed works, the

 

arbitrator has the following powers—

 

(a)    

power to require the operator to give the arbitrator a plan

 

and section in such form as the arbitrator thinks

 

appropriate;

 

(b)    

power to require the transport undertaker to give the

 

arbitrator any observations on such a plan or section in such

 

form as the arbitrator thinks appropriate;

 

(c)    

power to impose on either party any other requirements

 

which the arbitrator thinks appropriate (including a

 

requirement to provide information in such form as the

 

arbitrator thinks appropriate);

 

(d)    

power to make an award—

 

(i)    

requiring modifications to the proposed works, and

 

(ii)    

specifying the terms on which, and the conditions

 

subject to which, the proposed works may be

 

carried out;

 

(e)    

power to award one or both of the following, payable to the

 

transport undertaker—

 

(i)    

compensation for loss or damage sustained by that

 

person in consequence of the carrying out of the

 

works;

 

(ii)    

consideration for the right to carry out the works.

 

      (4)  

If the matter in dispute is a disagreement about an amount of

 

compensation, the arbitrator has the following powers—

 

(a)    

power to impose on either party any requirements which

 

the arbitrator thinks appropriate (including a requirement to

 

provide information in such form as the arbitrator thinks

 

appropriate);

 

(b)    

power to award compensation, payable to the transport

 

undertaker, for loss or damage sustained by that person in

 

consequence of the carrying out of the emergency works.

 

      (5)  

The arbitrator may make an award conditional upon a party

 

complying with a requirement imposed under sub-paragraph (3)(a),

 

(b) or (c) or (4)(a).

 

      (6)  

In determining what award to make, the matters to which the

 

arbitrator must have regard include the public interest in there being

 

access to a choice of high quality electronic communications

 

services.

 

      (7)  

The arbitrator’s power under sub-paragraph (3) or (4) to award

 

compensation for loss includes power to award compensation for


 
 

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, continued

 
 

any increase in the expenses incurred by the transport undertaker in

 

carrying on its railway, canal or tramway undertaking.

 

      (8)  

An award of consideration under sub-paragraph (3)(e)(ii) must be

 

determined on the basis of what would have been fair and

 

reasonable if the transport undertaker had willingly given authority

 

for the works to be carried out on the same terms, and subject to the

 

same conditions (if any), as are contained in the award.

 

      (9)  

In this paragraph “party” means—

 

(a)    

the operator, or

 

(b)    

the transport undertaker.

 

When can a transport undertaker require an operator to alter communications

 

apparatus?

 

49  (1)  

A transport undertaker may give an operator notice which requires

 

the operator to alter a line or other electronic communications

 

apparatus specified in the notice (“notice requiring alterations”) on

 

the ground that keeping the apparatus on, under or over transport

 

land interferes with, or is likely to interfere with—

 

(a)    

the carrying on of the transport undertaker’s railway, canal

 

or tramway undertaking, or

 

(b)    

anything done or to be done for the purposes of its railway,

 

canal or tramway undertaking.

 

      (2)  

The operator may, within the notice period, give the transport

 

undertaker notice (“counter-notice”) specifying the respects in

 

which the operator is not prepared to comply with the notice

 

requiring alterations.

 

      (3)  

The operator must comply with the notice requiring alterations,

 

within a reasonable time and to the reasonable satisfaction of the

 

transport undertaker, if—

 

(a)    

the notice period has ended, and

 

(b)    

no counter-notice has been given.

 

      (4)  

If counter-notice has been given (within the notice period), the

 

transport undertaker may apply to the court for an order requiring

 

the operator to alter any of the specified apparatus.

 

      (5)  

The court must not make an order unless it is satisfied that the order

 

is necessary on one of the grounds mentioned in sub-paragraph (1).

 

      (6)  

In determining whether to make an order, the matters to which the

 

court must also have regard include the public interest in there

 

being access to a choice of high quality electronic communications

 

services.

 

      (7)  

An order under this paragraph may take such form and be on such

 

terms as the court thinks fit.

 

      (8)  

In particular, the order—

 

(a)    

may impose such conditions, and

 

(b)    

may contain such directions to the operator or the transport

 

undertaker,


 
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Revised 13 January 2015