House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

Public Bill Committee:
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, continued

      (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

undertaker’s works?

67  (1)
An operator may make an alteration of electronic communications

apparatus if—

(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

the alteration.

      (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

paragraph.

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

network.

      (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

operator.

      (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

alteration; and

(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.

Public Bill Committee:
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, continued

      (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

is likely to cause—

(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

if that person—

(a)
makes an alteration of electronic communications

apparatus in carrying out non-emergency undertaker’s

works, and

(b)
does so—

(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

if that person—

(a)
makes an alteration of electronic communications

apparatus in carrying out non-emergency undertaker’s

works, and

(b)
unreasonably fails to comply with any reasonable

requirement of the operator under this Part of this code

when doing so.

      (3)
An undertaker, or an agent of an undertaker, is guilty of an offence

if that person—

(a)
makes an alteration of electronic communications

apparatus in carrying out emergency undertaker’s works,

and

(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

summary conviction to—

(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.

Public Bill Committee:
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, continued

Overhead apparatus

Introductory

70
This Part of this code—

(a)
confers a power on operators to install and keep certain

overhead apparatus, and

(b)
imposes a duty on operators to affix notices to certain

overhead apparatus.

Power to fly lines

71  (1)
This paragraph applies where any electronic communications

apparatus is kept on or over any land for the purposes of an

operator’s network.

      (2)
The operator has the right, for the statutory purposes, to install and

keep lines which—

(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

or over any land of—

(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

connected.

      (3)
A notice attached under sub-paragraph (1) above—

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, continued

(a)
must be attached in a position where it is reasonably

legible, and

(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

question.

      (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

committing the offence.

Rights to object to certain apparatus

Introductory

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

exercised, and

(b)
the power and procedures of the court if an objection is

made.

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

lands.

      (2)
In that case a person has a right to object under this Part of this code

if the person—

(a)
is an occupier of, or has an interest in, the tidal water or

lands,

(b)
is not bound by a code right enabling the operator to keep

the apparatus installed on, under or over the tidal water or

lands, and

(c)
is not a person with the benefit of a Crown interest in the

tidal water or lands.

      (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

paragraph 71.

      (4)
In that case a person has a right to object under this Part of this code

if the person—

(a)
is an occupier of, or has an interest in, the land, and

Public Bill Committee:
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, continued

(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

if—

(a)
the person is an occupier of, or has an interest in, any

neighbouring land, and

(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

paragraph 77).

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

met.

      (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.

Public Bill Committee:
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, continued

      (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

installed), or

(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

relates;

(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

authorised by the court.

      (7)
Where an objector has both given a notice under paragraph 75 and

applied for compensation under any of the other provisions of this

code—

(a)
the court may give such directions as it thinks fit for

ensuring that no compensation is paid until any

proceedings under this paragraph have been disposed of,

and

(b)
if the court makes an order under this paragraph, it may

provide in that order for some or all of the compensation

otherwise payable under this code to the objector not to be

so payable, or, if the case so requires, for some or all of any

compensation paid under this code to the objector to be

repaid to the operator.

      (8)
For the purposes of sub-paragraph (5)(c), the court has the power on

an application under this paragraph to give the objector directions

for bringing the application to the notice of such other interested

persons as it thinks fit.

      (9)
This paragraph is subject to paragraph 78.

What is the procedure if the objection is made later than 12 months after

installation?

77  (1)
This paragraph applies if the notice is given after 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.

Public Bill Committee:
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, continued

      (3)
The court may uphold the objection only if it is satisfied that—

(a)
the alteration is necessary to enable the objector to carry out

a proposed improvement of the land by reference to which

the objection is made, and

(b)
the alteration will not substantially interfere with any

service which is or is likely to be provided using the

operator’s network.

      (4)
If the court upholds an objection under this paragraph it may by

order direct the alteration of the apparatus to which the objection

relates.

      (5)
An order under this paragraph may provide for the alteration to be

carried out with such modifications, on such terms and subject to

such conditions as the court thinks fit.

      (6)
But the court must not include any such modifications, terms or

conditions in its order without the consent of the objector, and if

such consent is not given may refuse to make an order under this

paragraph.

      (7)
An order made under this paragraph must, unless the court

otherwise thinks fit, require the objector to reimburse the operator

in respect of any expenses which the operator incurs in or in

connection with the execution of any works in compliance with the

order.

      (8)
This paragraph is subject to paragraph 78.

      (9)
In this paragraph “improvement” includes development and change

of use.

What limitations are there on the court’s powers under paragraph 76 or 77?

78  (1)
This paragraph applies where the court is considering making—

(a)
an order under paragraph 76 directing the alteration of any

apparatus or authorising the installation of any apparatus,

or

(b)
an order under paragraph 77 directing the alteration of any

apparatus.

      (2)
The court must not make the order unless it is satisfied—

(a)
that the operator has all such rights as it appears to the court

appropriate that the operator should have for the purpose of

making the alteration or, as the case may be, installing the

apparatus, or

(b)
that—

(i)
the operator would have all those rights if the court,

on an application under paragraph 19, imposed an

agreement on the operator and another person, and

(ii)
it would be appropriate for the court, on such an

application, to impose such an agreement.

      (3)
For the purposes of avoiding the need for the agreement of any

person to the alteration or installation of any apparatus, the court

has the same powers as it would have if an application had been



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