House of Commons Public Bill Committee Proceedings

Session 2014 - 15
Internet Publications
Other Bills before Parliament

Public Bill Committee Proceedings: 15 January 2015
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Infrastructure Bill-[ [], continued

(b)
this code expressly or impliedly imposes a limitation on the

use to which electronic communications apparatus

installed by that person may be put or on the purposes for

which it may be used, and

(c)
that person is a party to a relevant agreement or becomes a

party to an agreement which (after the person has become

a party to it) is a relevant agreement.

      (2)
The limitation does not preclude—

(a)
the doing of anything in relation to that apparatus, or

(b)
its use for particular purposes,


to the extent that the doing of that thing, or the use of the apparatus

for those purposes, is in pursuance of the relevant agreement.

      (3)
This paragraph is not to be construed, in relation to a person who is

entitled or authorised by or under a relevant agreement to share the

use of apparatus installed by another party to the agreement, as

affecting any consent requirement imposed (whether by an

agreement, an enactment or otherwise) on that person.

      (4)
In this paragraph—

“consent requirement”, in relation to a person, means a requirement

for the person to obtain consent or permission to or in connection

with—

(a)
the installation by the person of apparatus, or

(b)
the doing by the person of any other thing in relation to apparatus

the use of which the person is entitled or authorised to share;

“relevant agreement” means an agreement in relation to electronic

communications apparatus which—

(c)
relates to the sharing by different parties to the agreement of the

use of that apparatus, and

(d)
is an agreement that satisfies the requirements of sub-paragraph

(5).

      (5)
An agreement satisfies the requirements of this sub-paragraph if—

(a)
every party to the agreement is a person in whose case this

code applies by virtue of a direction under section 106, or

(b)
one or more of the parties to the agreement is a person in

whose case this code so applies and every other party to the

agreement is a qualifying person.

      (6)
A person is a qualifying person for the purposes of sub-paragraph

(5) if the person is either—

(a)
a person who provides an electronic communications

network without being a person in whose case this code

applies, or

(b)
a designated provider of an electronic communications

service consisting in the distribution of a programme

service by means of an electronic communications

network.

      (7)
In sub-paragraph (6)—

“designated” means designated by regulations made by the Secretary

of State;

Public Bill Committee Proceedings: 15 January 2015
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Infrastructure Bill-[ [], continued

“programme service” has the same meaning as in the Broadcasting

Act 1990.

Part 4

Power of court to impose agreement

Introductory

18
This Part of this code makes provision about—

(a)
the circumstances in which the court can impose an

agreement on a person by which the person confers or is

otherwise bound by a code right,

(b)
the test to be applied by the court in deciding whether to

impose such an agreement,

(c)
the effect of such an agreement and its terms,

(d)
the imposition of an agreement on a person on an interim or

temporary basis.

When can the court impose an agreement?

19  (1)
This paragraph applies where the operator requires a person (a

“relevant person”) to agree—

(a)
to confer a code right on the operator, or

(b)
to be otherwise bound by a code right which is exercisable

by the operator.

      (2)
The operator may give the relevant person a notice in writing—

(a)
setting out the code right, and all of the other terms of the

agreement that the operator seeks, and

(b)
stating that the operator seeks the person’s agreement to

those terms.

      (3)
The operator may apply to the court for an order under this

paragraph if—

(a)
the relevant person does not, before the end of 28 days

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

to confer or be otherwise bound by the code right, or

(b)
at any time after the notice is given, the relevant person

gives notice in writing to the operator that the person does

not agree to confer or be otherwise bound by the code right.

      (4)
An order under this paragraph is one which imposes on the operator

and the relevant person an agreement between them which—

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

(b)
provides for the code right to bind the relevant person.

What is the test to be applied by the court?

20  (1)
Subject to sub-paragraph (5), the court may make an order under

paragraph 19 if (and only if) the court thinks that both of the

following conditions are met.

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      (2)
The first condition is that the prejudice caused to the relevant

person by the order is capable of being adequately compensated by

money.

      (3)
The second condition is that the public benefit likely to result from

the making of the order outweighs the prejudice to the relevant

person.

      (4)
In deciding whether the second condition is met, the court must

have regard to the public interest in access to a choice of high

quality electronic communications services.

      (5)
The court may not make an order under paragraph 19 if it thinks that

the relevant person intends to redevelop all or part of the land to

which the code right would relate, or any neighbouring land, and

could not reasonably do so if the order were made.

What is the effect of an agreement imposed under paragraph 19?

21
An agreement imposed by an order under paragraph 19 takes effect

for all purposes of this code as an agreement under Part 2 of this

code between the operator and the relevant person.

What are the terms of an agreement imposed under paragraph 19?

22  (1)
An order under paragraph 19 may impose an agreement which

gives effect to the code right sought by the operator with such

modifications as the court thinks appropriate.

      (2)
An order under paragraph 19 must require the agreement to contain

such terms as the court thinks appropriate, subject to sub-

paragraphs (3) to (8).

      (3)
The terms of the agreement must include terms as to the payment of

consideration by the operator to the relevant person for the relevant

person’s agreement to confer or be bound by the code right (as the

case may be).

      (4)
Paragraph 23 makes provision about the determination of

consideration under sub-paragraph (3).

      (5)
The terms of the agreement must include the terms the court thinks

appropriate for ensuring that the least possible loss and damage is

caused by the exercise of the code right to persons who—

(a)
occupy the land in question,

(b)
own interests in that land, or

(c)
are from time to time on that land.

      (6)
Sub-paragraph (5) applies in relation to a person regardless of

whether the person is a party to the agreement.

      (7)
The terms of the agreement must include terms specifying for how

long the code right conferred by the agreement is exercisable.

      (8)
The court must determine whether the terms of the agreement

should include a term—

(a)
permitting termination of the agreement (and, if so, in what

circumstances);

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(b)
enabling the relevant person to require the operator to

reposition or temporarily to remove the electronic

communications equipment to which the agreement relates

(and, if so, in what circumstances).

How is consideration to be determined under paragraph 22?

23  (1)
The amount of consideration payable by an operator to a relevant

person under an agreement imposed by an order under paragraph 19

must be an amount or amounts representing the market value of the

relevant person’s agreement to confer or be bound by the code right

(as the case may be).

      (2)
For this purpose the market value of a person’s agreement to confer

or be bound by a code right is the amount that, at the date the market

value is assessed, a willing buyer would pay a willing seller for the

agreement—

(a)
in a transaction at arm’s length,

(b)
on the basis that the buyer and seller were acting prudently

and with full knowledge of the transaction, and

(c)
as if the transaction were subject to the other provisions of

the agreement imposed by the order under paragraph 19.

      (3)
The market value—

(a)
must be assessed on the basis of the value to the operator of

the agreement and having regard to the use which the

operator intends to make of the land in question (even if the

operator may only use the land in that way pursuant to

powers conferred by an enactment), and

(b)
must not be assessed on the basis of the value of the right

or agreement to the relevant person.

      (4)
The market value must be assessed on the assumption that—

(a)
there is more than one site which the operator could use for

the purpose for which the operator intends to use the land

in question (whether or not that is actually the case), and

(b)
paragraphs 15 and 16 (assignment of code rights and

upgrading and sharing of apparatus) do not apply to the

code right or any electronic communications apparatus to

which the code right could apply.

      (5)
The terms of the agreement may provide for consideration to be

payable—

(a)
as a lump sum or periodically,

(b)
on the occurrence of a specified event or events, or

(c)
in such other form or at such other time or times as the court

may direct.

Power to amend paragraph 23

24  (1)
The Secretary of State may by regulations amend paragraph 23 so

that it requires that the amount of consideration referred to in sub-

paragraph (1) of that paragraph—

(a)
must be assessed on the basis of the value of the right or

agreement to the relevant person, and

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(b)
must not be assessed on the basis of the value to the

operator of the right or agreement or having regard to the

use which the operator intends to make of the land in

question.

      (2)
Regulations under sub-paragraph (1) may also repeal paragraph

23(4).

      (3)
Before making regulations under this paragraph the Secretary of

State must consult such persons as appear to the Secretary of State

to be appropriate.

What rights to the payment of compensation are there?

25  (1)
If the court makes an order under paragraph 19 the court may also

order the operator to pay compensation to the relevant person for

any loss or damage that has been sustained or will be sustained by

that person as a result of the exercise of the code right to which the

order relates.

      (2)
An order under sub-paragraph (1) may be made—

(a)
at the time the court makes an order under paragraph 19, or

(b)
at any time afterwards, on the application of the relevant

person.

      (3)
An order under sub-paragraph (1) may—

(a)
specify the amount of compensation to be paid by the

operator, or

(b)
give directions for the determination of any such amount.

      (4)
Directions under sub-paragraph (3)(b) may provide—

(a)
for the amount of compensation to be agreed between the

operator and the relevant person;

(b)
for any dispute about that amount to be determined by

arbitration.

      (5)
An order under this paragraph may provide for the operator—

(a)
to make a lump sum payment,

(b)
to make periodical payments,

(c)
to make a payment or payments on the occurrence of an

event or events, or

(d)
to make a payment or payments in such other form or at

such other time or times as the court may direct.

      (6)
Paragraph 81 makes further provision about compensation in the

case of an order under paragraph 19.

Interim code rights

26  (1)
An operator may apply to the court for an order which imposes on

the operator and that person, on an interim basis, an agreement

between them which—

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

(b)
provides for a code right to bind that person.

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      (2)
An order under this paragraph imposes an agreement on the

operator and a person on an interim basis if it provides for them to

be bound by the agreement—

(a)
for the period specified in the order, or

(b)
until the occurrence of an event specified in the order.

      (3)
The court may make an order under this paragraph if (and only if)

the operator has served a notice under paragraph 19(2) stating that

an agreement is sought on an interim basis and—

(a)
the operator and that person have agreed to the making of

the order and the terms of the agreement imposed by it, or

(b)
the court thinks that there is a good arguable case that the

test in paragraph 20 for the making of an order under

paragraph 19 is met.

      (4)
Subject to sub-paragraphs (5) and (6), the following provisions

apply in relation to an order under this paragraph and an agreement

imposed by it as they apply in relation to an order under paragraph

19 and an agreement imposed by it—

(a)
paragraph 19(3) (time at which operator may apply for

agreement to be imposed);

(b)
paragraph 21 (effect of agreement imposed under

paragraph 19);

(c)
in paragraph 22 (terms of agreement imposed under

paragraph 19), sub-paragraphs (1) to (6) and (8);

(d)
paragraph 23 (payment of consideration);

(e)
paragraph 25 (payment of compensation);

(f)
paragraph 81 (compensation where agreement imposed).

      (5)
The court may make an order under this paragraph even though the

period mentioned in paragraph 19(3)(a) has not elapsed (and

paragraph 19(3)(b) does not apply) if the court thinks that the order

should be made as a matter of urgency.

      (6)
Paragraphs 22, 23 and 25 apply by virtue of sub-paragraph (4) as

if—

(a)
references to the relevant person were to the person

mentioned in sub-paragraph (1) of this paragraph, and

(b)
the duty in paragraph 22 to include terms as to the payment

of consideration to that person in an agreement were a

power to do so.

      (7)
Sub-paragraph (8) applies if—

(a)
an order has been made under this paragraph imposing an

agreement on an operator and a person in respect of any

land, and

(b)
on a subsequent application under paragraph 19 for an

order to be made imposing an agreement on the operator

and the person in respect of that land, the court decides not

to make such an order.

      (8)
From the time when the court’s decision is made, that person has

the right to require the operator to remove any electronic

communications apparatus placed on the land under the agreement

imposed under this paragraph.

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Temporary code rights

27  (1)
This paragraph applies where—

(a)
an operator gives a notice under paragraph 19(2) to a

person in respect of any land,

(b)
the notice requires that person’s agreement in respect of a

right which is to be exercisable (in whole or in part) in

relation to electronic communications apparatus which is

already installed on, under or over the land,

(c)
the notice states that the agreement is sought on a

temporary basis, and

(d)
the person has the right to require the removal of the

apparatus as a result of paragraph 37 but, as a result of the

operation of paragraph 39, the operator is not required to

remove the apparatus.

      (2)
The court may, on the application of the operator, impose on the

operator and the person an agreement between them which confers

on the operator such temporary code rights as appear to the court

reasonably necessary for securing the objective in sub-paragraph

(3).

      (3)
That objective is that, until proceedings under paragraph 19 or 39

are determined, the service provided by the operator’s network is

maintained and the apparatus is properly adjusted and kept in

repair.

      (4)
Subject to sub-paragraphs (5) and (6), the following provisions

apply in relation to an order under this paragraph and an agreement

imposed by it as they apply in relation to an order under paragraph

19 and an agreement imposed by it—

(a)
paragraph 19(3) (time at which operator may apply for

agreement to be imposed);

(b)
paragraph 21 (effect of agreement imposed under

paragraph 19);

(c)
in paragraph 22 (terms of agreement imposed under

paragraph 19), sub-paragraphs (1) to (6) and (8);

(d)
paragraph 23 (payment of consideration);

(e)
paragraph 25 (payment of compensation);

(f)
paragraph 81 (compensation where agreement imposed).

      (5)
The court may make an order under this paragraph even though the

period mentioned in paragraph 19(3)(a) has not elapsed (and

paragraph 19(3)(b) does not apply) if the court thinks that the order

should be made as a matter of urgency.

      (6)
Paragraphs 22, 23 and 25 apply by virtue of sub-paragraph (4) as

if—

(a)
references to the relevant person were to the person

mentioned in sub-paragraph (1) of this paragraph, and

(b)
the duty in paragraph 22 to include terms as to the payment

of consideration to that person in an agreement were a

power to do so.

      (7)
Sub-paragraph (8) applies where, in the course of the proceedings

under paragraph 19, it is shown that a person with an interest in the



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