Session 2014 - 15
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      (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.

 

      (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


 
 

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(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

 

duly made under paragraph 19 above for an order imposing such an

 

agreement.

 

      (4)  

For the purposes of this paragraph, the court has the power on an

 

application under paragraph 76 or 77 to give the objector directions

 

for bringing the application to the notice of such other interested

 

persons as it thinks fit.

 

Part 13

 

Rights to lop trees

 

Rights to lop trees

 

79  (1)  

This paragraph applies where—

 

(a)    

a tree or other vegetation overhangs a street in England and

 

Wales or Northern Ireland or a road in Scotland, and

 

(b)    

the tree or vegetation—

 

(i)    

obstructs, or will or may obstruct, relevant

 

electronic communications apparatus, or

 

(ii)    

interferes with, or will or may interfere with, such

 

apparatus.

 

      (2)  

In sub-paragraph (1) “relevant electronic communications

 

apparatus” means electronic communications apparatus which—

 

(a)    

is installed, or about to be installed, on land, and

 

(b)    

is used, or to be used, for the purposes of an operator’s

 

network.

 

      (3)  

The operator may, by notice to the occupier of the land on which the

 

tree or vegetation is growing, require the tree to be lopped or the

 

vegetation to be cut back to prevent the obstruction or interference.

 

      (4)  

If, within the period of 28 days beginning with the day on which the

 

notice is given, the occupier of the land on which the tree is growing

 

gives the operator a counter-notice objecting to the lopping of the

 

tree or cutting back of the vegetation, the notice has effect only if

 

confirmed by an order of the court.


 
 

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      (5)  

Sub-paragraph (6) applies if at any time a notice under sub-

 

paragraph (3) has not been complied with and—

 

(a)    

the period of 28 days beginning with the day on which the

 

notice was given has expired without a counter-notice

 

having been given, or

 

(b)    

an order of the court confirming the notice has come into

 

force.

 

      (6)  

The operator may cause the tree to be lopped or the vegetation to be

 

cut back.

 

      (7)  

Where the operator lops a tree or cuts back vegetation in exercise of

 

the power in sub-paragraph (6) the operator must do so in a

 

husband-like manner and in such a way as to cause the minimum

 

damage to the tree or vegetation.

 

      (8)  

Sub-paragraph (9) applies where—

 

(a)    

a notice under sub-paragraph (3) is complied with (either

 

without a counter-notice having been given or after the

 

notice has been confirmed), or

 

(b)    

the operator exercises the power in sub-paragraph (6).

 

      (9)  

The court must, on an application made by a person who has

 

sustained loss or damage in consequence of the lopping of the tree

 

or cutting back of the vegetation or who has incurred expenses in

 

complying with the notice, order the operator to pay that person

 

such compensation in respect of the loss or damage as it thinks fit.

 

Part 14

 

Compensation under the code

 

Introductory

 

80         

This Part of this code makes provision about compensation under

 

this code.

 

Compensation where agreement imposed or apparatus removed

 

81  (1)  

This paragraph applies to the following powers of the court to order

 

an operator to pay compensation to a person—

 

(a)    

the power in paragraph 25(1) (compensation where order

 

made imposing agreement on person);

 

(b)    

the power in paragraph 40(3) (compensation in relation to

 

removal of the apparatus from the land).

 

      (2)  

Depending on the circumstances, the power of the court to order the

 

payment of compensation for loss or damage includes power to

 

order payment for—

 

(a)    

expenses (including reasonable legal and valuation

 

expenses, subject to the provisions of any enactment about

 

the powers of the court by whom the order for

 

compensation is made to award costs),

 

(b)    

diminution in the value of the land, and

 

(c)    

costs of reinstatement.


 
 

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      (3)  

For the purposes of assessing such compensation for diminution in

 

the value of land, the following provisions apply with any necessary

 

modifications as they apply for the purposes of assessing

 

compensation for the compulsory purchase of any interest in land—

 

(a)    

in relation to England and Wales, rules (2) to (4) set out in

 

section 5 of the Land Compensation Act 1961;

 

(b)    

in relation to Scotland, rules (2) to (4) set out in section 12

 

of the Land Compensation (Scotland) Act 1963;

 

(c)    

in relation to Northern Ireland, rules (2) to (4) set out in

 

Article 6(1) of the Land Compensation (Northern Ireland)

 

Order 1982 (SI 1982/712 (NI 9)).

 

      (4)  

In the application of this paragraph to England and Wales, section

 

10(1) to (3) of the Land Compensation Act 1973 (compensation in

 

respect of mortgages, trusts of land and settled land) applies in

 

relation to such compensation for diminution in the value of land as

 

it applies in relation to compensation under Part 1 of that Act.

 

      (5)  

In the application of this paragraph to Scotland, section 10(1) and

 

(2) of the Land Compensation (Scotland) Act 1973 (compensation

 

in respect of restricted interests in land) applies in relation to such

 

compensation for diminution in the value of land as it applies in

 

relation to compensation under Part 1 of that Act.

 

      (6)  

In the application of this paragraph to Northern Ireland, Article

 

13(1) to (3) of the Land Acquisition and Compensation (Northern

 

Ireland) Order 1973 (SI 1973/1896 (NI 21)) (compensation in

 

respect of mortgages, trusts for sale and settlements) applies in

 

relation to such compensation for diminution in the value of land as

 

it applies in relation to compensation under Part II of that Order.

 

      (7)  

Where a person has a claim for compensation to which this

 

paragraph applies and a claim for compensation under any other

 

provision of this code in respect of the same loss, the compensation

 

payable to that person must not exceed the amount of that person’s

 

loss.

 

Compensation for injurious affection to neighbouring land etc

 

82  (1)  

This paragraph applies where a right conferred by or in accordance

 

with any provision of Parts 2 to 9 of this code is exercised by an

 

operator.

 

      (2)  

In the application of this paragraph to England and Wales,

 

compensation is payable by the operator under section 10 of the

 

Compulsory Purchase Act 1965 (compensation for injurious

 

affection to neighbouring land) as if that section applied in relation

 

to injury caused by the exercise of such a right as it applied in

 

relation to injury caused by the execution of works on land that has

 

been compulsorily acquired.

 

      (3)  

In the application of this paragraph to Scotland, compensation is

 

payable by the operator under section 6 of the Railway Clauses

 

Consolidation (Scotland) Act 1845 as if that section applied in

 

relation to injury caused by the exercise of such a right as it applied

 

in relation to injury caused by the execution of works on land that

 

has been taken or used for the purpose of a railway.


 
 

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      (4)  

Any question as to a person’s entitlement to compensation by virtue

 

of sub-paragraph (3), or as to the amount of that compensation, is,

 

in default of agreement, to be determined by the Lands Tribunal for

 

Scotland.

 

      (5)  

In the application of this paragraph to Northern Ireland,

 

compensation is payable by the operator under Article 18 of the

 

Land Compensation (Northern Ireland) Order 1982 (SI 1982/712

 

(NI 9)) as if that section applied in relation to injury caused by the

 

exercise of such a right as it applied in relation to injury caused by

 

the execution of works on land that has been compulsorily acquired.

 

      (6)  

Any question as to a person’s entitlement to compensation by virtue

 

of sub-paragraph (5), or as to the amount of that compensation, is,

 

in default of agreement, to be determined by the Lands Tribunal for

 

Northern Ireland.

 

      (7)  

Compensation is payable on a claim for compensation under this

 

paragraph only if the amount of the compensation exceeds £50.

 

      (8)  

Compensation is payable to a person under this paragraph

 

irrespective of whether the person claiming the compensation has

 

any interest in the land in relation to which the right referred to in

 

sub-paragraph (1) is exercised.

 

      (9)  

Compensation under this paragraph may include reasonable legal

 

and valuation expenses, subject to the provisions of any enactment

 

about the powers of the court or tribunal by whom an order for

 

compensation is made to award costs.

 

No other compensation available

 

83         

Except as provided by any provision of Parts 2 to 14 of this code or

 

this Part, an operator is not liable to compensate any person for, and

 

is not subject to any other liability in respect of, any loss or damage

 

caused by the lawful exercise of any right conferred by or in

 

accordance with any provision of those Parts.

 

Part 15

 

Notices under the code

 

Introductory

 

84         

This Part makes provision—

 

(a)    

about requirements for the form of notices given under this

 

code by operators,

 

(b)    

about requirements for the form of notices given under this

 

code by persons other than operators, and

 

(c)    

about procedures for giving notices.

 

Notices given by operators

 

85  (1)  

A notice given under this code by an operator must—

 

(a)    

explain the effect of the notice,

 

(b)    

explain which provisions of this code are relevant to the

 

notice, and


 
 

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(c)    

explain the steps that may be taken by the recipient in

 

respect of the notice.

 

      (2)  

If OFCOM have prescribed the form of a notice which may or must

 

be given by an operator under a provision of this code, a notice

 

given by an operator under that provision must be in that form.

 

      (3)  

A notice which does not comply with this paragraph is not a valid

 

notice for the purposes of this code.

 

      (4)  

Sub-paragraph (3) does not prevent the person to whom the notice

 

is given from relying on the notice if the person chooses to do so.

 

      (5)  

In any proceedings under this code a certificate issued by OFCOM

 

stating that a particular form of notice has been prescribed by them

 

as mentioned in this paragraph is conclusive evidence of that fact.

 

Notices given by others

 

86  (1)  

Sub-paragraph (2) applies to a notice given under paragraph 31(1),

 

33(1), 38(1) or 39(2) by a person other than an operator.

 

      (2)  

If OFCOM have prescribed the form of a notice given under the

 

provision in question by a person other than an operator, the notice

 

must be in that form.

 

      (3)  

A notice which does not comply with sub-paragraph (2) is not a

 

valid notice for the purposes of this code.

 

      (4)  

Sub-paragraph (3) does not prevent the operator to whom the notice

 

is given from relying on the notice if the operator chooses to do so.

 

      (5)  

Sub-paragraph (6) applies to a notice given under any other

 

provision of this code by a person other than an operator if—

 

(a)    

OFCOM have prescribed the form of a notice given under

 

that provision by a person other than an operator,

 

(b)    

the notice is given in response to a notice given by an

 

operator, and

 

(c)    

the operator has, in giving the notice, drawn the person’s

 

attention to the form prescribed by OFCOM.

 

      (6)  

The notice is a valid notice for the purposes of this code, but the

 

person giving the notice must bear any costs incurred by the

 

operator as a result of the notice not being in that form.

 

      (7)  

In any proceedings under this code a certificate issued by OFCOM

 

stating that a particular form of notice has been prescribed by them

 

as mentioned in this paragraph is conclusive evidence of that fact.

 

Prescription of notices by OFCOM

 

87  (1)  

OFCOM must prescribe the form of a notice to be given under each

 

provision of this code that requires a notice to be given.

 

      (2)  

OFCOM may from time to time amend or replace a form prescribed

 

under sub-paragraph (1).


 
 

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      (3)  

Before prescribing a form for the purposes of this code, OFCOM

 

must consult operators and such other persons as OFCOM think

 

appropriate.

 

      (4)  

Sub-paragraph (3) does not apply to the amendment or replacement

 

of a form prescribed under sub-paragraph (1).

 

Procedures for giving notice

 

88  (1)  

A notice given under this code must not be sent by post unless it is

 

sent by a registered post service or by recorded delivery.

 

      (2)  

For the purposes, in the case of a notice under this code, of section

 

394 of this Act (service of notifications and other documents) and

 

section 7 of the Interpretation Act 1978 (references to service by

 

post), the proper address of a person (“P”) is—

 

(a)    

if P has given the person giving the notice an address for

 

service under this code, that address, and

 

(b)    

otherwise, the address given by section 394.

 

      (3)  

Sub-paragraph (4) applies if it is not practicable, for the purposes of

 

giving a notice under this code, to find out after reasonable

 

enquiries the name and address of a person who is the occupier of

 

land for the purposes of this code.

 

      (4)  

A notice may be given under this code to the occupier —

 

(a)    

by addressing it to a person by the description of “occupier”

 

of the land (and describing the land), and

 

(b)    

by delivering it to a person who is on the land or, if there is

 

no person on the land to whom it can be delivered, by

 

affixing it, or a copy of it, to a conspicuous object on the

 

land.

 

      (5)  

Sub-paragraph (6) applies if it is not practicable, for the purposes of

 

giving a notice under this code, to find out after reasonable

 

enquiries the name and address of the owner of an interest in land.

 

      (6)  

A notice may be given under this code to the owner—

 

(a)    

by addressing it to a person by the description of “owner”

 

of the interest (and describing the interest and the land), and

 

(b)    

by delivering it to a person who is on the land or, if there is

 

no person on the land to whom it can be delivered, by

 

affixing it, or a copy of it, to a conspicuous object on the

 

land.

 

Part 16

 

Enforcement and dispute resolution

 

Introductory

 

89         

This Part of this code makes provision about—

 

(a)    

the court or tribunal by which agreements and rights under

 

this code may be enforced,

 

(b)    

the meaning of references to “the court” in this code, and


 
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