Session 2014 - 15
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Other Bills before Parliament


 
 

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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.

 

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;


 
 

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(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

 

(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—


 
 

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(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.

 

      (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


 
 

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(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.

 

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;


 
 

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“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”—

 

(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).”


 
 

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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).”

 

Land Registration Act 2002 (c. 9)

 

5          

The Land Registration Act 2002 is amended as follows.

 

6          

In Schedule 1 (unregistered interests which override first registration) after

 

paragraph 9 insert—

 

“Rights under the electronic communications code

 

9A         

A code right within the meaning of Schedule 3A to the

 

Communications Act 2003 (the electronic communications code),

 

other than a right conferred by a lease.”

 

7          

In Schedule 3 (unregistered interests which override registered dispositions)

 

after paragraph 9 insert—

 

“Rights under the electronic communications code

 

9A         

A code right within the meaning of Schedule 3A to the

 

Communications Act 2003 (the electronic communications code),

 

other than a right conferred by a lease.”

 

Communications Act 2003 (c. 21)

 

8          

The Communications Act 2003 is amended as follows.

 

9    (1)  

Section 394 (service of notifications and other documents) is amended as

 

follows.

 

      (2)  

In subsection (2) omit paragraph (d).


 
 

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      (3)  

After subsection (10) insert—

 

“(11)    

In its application to Schedule 3A this section is subject to paragraph

 

88 of that Schedule.”

 

10  (1)  

Section 402 (power of Secretary of State to make orders and regulations) is

 

amended as follows.

 

      (2)  

In subsection (2) after paragraph (a) insert—

 

“(aa)    

regulations under paragraph 24 of Schedule 3A,

 

(ab)    

regulations under paragraph 92 of that Schedule which

 

amend, repeal or modify the application of primary

 

legislation,”.

 

      (3)  

After subsection (2) insert—

 

“(2A)    

A statutory instrument containing (whether alone or with other

 

provisions)—

 

(a)    

regulations under paragraph 24 of Schedule 3A, or

 

(b)    

regulations under paragraph 92 of that Schedule which

 

amend, repeal or modify the application of primary

 

legislation,

 

    

may not be made unless a draft of the instrument has been laid before

 

and approved by a resolution of each House of Parliament.”

 

      (4)  

After subsection (3) insert—

 

“(4)    

In this section “primary legislation” means—

 

(a)    

an Act of Parliament,

 

(b)    

a Measure or Act of the National Assembly for Wales,

 

(c)    

an Act of the Scottish Parliament, or

 

(d)    

Northern Ireland legislation.”

 

Consequential repeals

 

11         

In consequence of the amendments made by section (The electronic

 

communications code) and this Schedule, Schedule 3 to the Communications

 

Act 2003 is repealed.””

 

Member’s explanatory statement

 

This amendment makes amendments which are consequential on the introduction of the electronic

 

communications code.

 


 

Mr John Hayes

 

Clause  46,  page  52,  line  31,  leave out “or”

 

Member’s explanatory statement

 

This amendment and amendment 72 make provision about the procedure applying to the powers

 

to make amendments in secondary legislation conferred by amendment NC19.

 

Mr John Hayes

 

Clause  46,  page  52,  line  32,  after “17” insert “, (Mayoral development orders)”

 

Member’s explanatory statement

 

This amendment applies the affirmative procedure to regulations under the new clause in

 

amendment NC8 where the regulations amend, repeal or modify the application of an Act.


 
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