Session 2014 - 15
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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,

 

            

as the court thinks necessary for resolving any difference between

 

the operator and the transport undertaker and for protecting their

 

respective interests.

 

      (9)  

In this paragraph—

 

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

 

which notice requiring alterations is given;

 

“specified apparatus” means the line or other electronic

 

communications apparatus specified in notice requiring alterations.

 

What happens to the transport land rights if land ceases to be transport land?

 

50  (1)  

This paragraph applies if an operator is exercising a transport land

 

right in relation to land immediately before a time when it ceases to

 

be transport land.

 

      (2)  

After that time, this Part of this code — except for paragraph 49 —

 

continues to apply to the land as if it were still transport land (and,

 

accordingly, the operator may continue to exercise any transport

 

land right in relation to the land as if it were still transport land).


 
 

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      (3)  

But sub-paragraph (2) is subject to sub-paragraphs (4) to (9).

 

      (4)  

In the application of this Part of this code to land in accordance with

 

sub-paragraph (2), references to the transport undertaker have

 

effect as references to the occupier of the land.

 

      (5)  

The application of this Part of this code to land in accordance with

 

sub-paragraph (2) does not authorise the operator—

 

(a)    

to cross the land with any line that is not in place at the time

 

when the land ceases to be transport land, or

 

(b)    

to install and keep any line or other electronic

 

communications apparatus that is not in place at the time

 

when the land ceases to be transport land.

 

      (6)  

But sub-paragraph (5) does not affect the power of the operator to

 

replace an existing line or other apparatus (whether in place at the

 

time when the land ceased to be transport land or a replacement

 

itself authorised by this sub-paragraph) with a new line or apparatus

 

which—

 

(a)    

is not substantially different from the existing line or

 

apparatus, and

 

(b)    

is not in a significantly different position.

 

      (7)  

The occupier of the land may, at any time after the land ceases to be

 

transport land, give the operator notice specifying a date on which

 

this Part of this code is to cease to apply to the land in accordance

 

with this paragraph (“notice of termination”).

 

      (8)  

That date specified in the notice of termination must fall after the

 

end of the period of 12 months beginning with the day on which the

 

notice of termination is given.

 

      (9)  

On the date specified in notice of termination in accordance with

 

sub-paragraph (8), the transport land rights cease to be exercisable

 

in relation to the land in accordance with this paragraph.

 

Offence: operators who do not comply with this Part of this code

 

51  (1)  

An operator is guilty of an offence if the operator starts any works

 

in contravention of any provision of paragraph 45, paragraph 46 or

 

paragraph 47.

 

      (2)  

An operator guilty of an offence under this paragraph is liable on

 

summary conviction to a fine not exceeding level 3 on the standard

 

scale.

 

      (3)  

In a case where this Part of this code applies in accordance with

 

paragraph 50, the reference in this paragraph to paragraph 45,

 

paragraph 46 or paragraph 47 is a reference to that paragraph as it

 

applies in accordance with paragraph 50.

 

Part 8

 

Conferral of street work rights and their exercise

 

Introductory

 

52         

This Part of this code makes provision about—


 
 

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(a)    

the conferral of street work rights, and

 

(b)    

the exercise of street work rights.

 

Streets and roads

 

53         

In this Part of this code—

 

“road” means—

 

(j)    

a road in Scotland which is a public road;

 

(k)    

a road in Northern Ireland, other than any land comprised in

 

the route of a special road (within the meaning of the Roads

 

(Northern Ireland) Order 1993 (SI 1993/3160 (NI 15)));

 

“street” means a street in England and Wales which is a maintainable

 

highway (within the meaning of Part 3 of New Roads and Street

 

Works Act 1991), other than one which is a footpath, bridleway or

 

restricted byway that crosses, and forms part of, any agricultural

 

land or any land which is being brought into use for agriculture.

 

Conferral of street work rights

 

54  (1)  

An operator may exercise a street work right for the statutory

 

purposes.

 

      (2)  

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

 

code.

 

The street work rights

 

55  (1)  

For the purposes of this code a “street work right”, in relation to an

 

operator, is—

 

(a)    

a right to install and keep electronic communications

 

apparatus in, on, under, over, along or across a street or a

 

road;

 

(b)    

a right to inspect, maintain, adjust, alter, repair, upgrade or

 

operate electronic communications apparatus which is

 

installed or kept by the exercise of the right under

 

paragraph (a);

 

(c)    

a right to carry out any works in, on, under, over, along or

 

across a street or road for or in connection with the exercise

 

of a right under paragraph (a) or (b);

 

(d)    

a right to enter any street or road to inspect, maintain,

 

adjust, alter, repair, upgrade or operate electronic

 

communications apparatus which is installed or kept by the

 

exercise of the right under paragraph (a).

 

      (2)  

The works that may be carried out under sub-paragraph (1)(c)

 

include—

 

(a)    

breaking up or opening a street or a road;

 

(b)    

tunnelling or boring under a street or a road;

 

(c)    

breaking up or opening a sewer, drain or tunnel.


 
 

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What happens to the street work rights if land ceases to be a street or road?

 

56  (1)  

This paragraph applies if an operator is exercising a street work

 

right in relation to land immediately before a time when the land

 

ceases to be a street or road.

 

      (2)  

After that time, this Part of this code continues to apply to the land

 

as if it were still a street or road (and, accordingly, the operator may

 

continue to exercise any street work right in relation to the land as

 

if it were still a street or road).

 

      (3)  

But sub-paragraph (2) is subject to sub-paragraphs (4) to (7).

 

      (4)  

The application of this Part of this code to land in accordance with

 

sub-paragraph (2) does not authorise the operator to install or keep

 

any electronic communications apparatus that is not in place at the

 

time when the land ceases to be a street or road.

 

      (5)  

But sub-paragraph (4) does not affect the power of the operator to

 

replace existing apparatus (whether in place at the time when the

 

land ceased to be a street or road or a replacement itself authorised

 

by this sub-paragraph) with new apparatus which—

 

(a)    

is not substantially different from the existing apparatus,

 

and

 

(b)    

is not in a significantly different position.

 

      (6)  

The occupier of land may, at any time after the land ceases to be a

 

street or road, give the operator notice specifying a date on which

 

this Part of this code is to cease to apply to the land in accordance

 

with this paragraph (“notice of termination”).

 

      (7)  

That date specified in the notice of termination must fall after the

 

end of the period of 12 months beginning with the day on which the

 

notice of termination is given.

 

      (8)  

On the date specified in notice of termination in accordance with

 

sub-paragraph (7), the street work rights cease to be exercisable in

 

relation to the land in accordance with this paragraph.

 

Part 9

 

Conferral of tidal water rights and their exercise

 

Introductory

 

57         

This Part of this code makes provision about—

 

(a)    

the conferral of tidal water rights, and

 

(b)    

the exercise of tidal water rights.

 

Tidal water or lands

 

58         

In this Part of this code “tidal water or lands” includes—

 

(a)    

any estuary or branch of the sea,

 

(b)    

the shore below mean high water springs, and

 

(c)    

the bed of any tidal water.


 
 

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Conferral of tidal water rights

 

59  (1)  

An operator may exercise a tidal water right for the statutory

 

purposes.

 

      (2)  

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

 

code.

 

The tidal water rights

 

60  (1)  

For the purposes of this code a “tidal water right”, in relation to an

 

operator, is—

 

(a)    

a right to install and keep electronic communications

 

apparatus on, under or over tidal water or lands;

 

(b)    

a right to inspect, maintain, adjust, alter, repair, upgrade or

 

operate electronic communications apparatus on, under or

 

over the tidal water or lands;

 

(c)    

a right to carry out any works on, under or over any tidal

 

water or lands for or in connection with the exercise of a

 

right under paragraph (a) or (b);

 

(d)    

a right to enter any tidal water or lands to inspect, maintain,

 

adjust, alter, repair, upgrade or operate electronic

 

communications apparatus which is installed or kept by the

 

exercise of the right under paragraph (a).

 

      (2)  

The works that may be carried out under sub-paragraph (1)(c)

 

include placing a buoy or seamark.

 

Exercise of tidal water right: Crown land

 

61  (1)  

An operator may not exercise a tidal water right in relation to land

 

in which a Crown interest subsists unless agreement has been given

 

to the exercise of the right in relation to the land, in accordance with

 

paragraph 100, in respect of that interest.

 

      (2)  

If, under a term of such an agreement (the “relevant term”), the

 

amount of consideration payable in respect of a tidal water right

 

exceeds the market value of the right, the relevant term may only be

 

enforced so as to require payment of an amount of consideration

 

which is equal to that market value.

 

      (3)  

For this purpose the market value of a tidal water right is the amount

 

that, at the date when the relevant term was agreed, a willing buyer

 

would have paid a willing seller for the agreement—

 

(a)    

in a transaction at arm’s length, and

 

(b)    

on the basis that the buyer and seller were acting prudently

 

and with full knowledge of the transaction.

 

      (4)  

The market value—

 

(a)    

must be assessed on the basis of the value to the operator of

 

the tidal water right and having regard to the use which the

 

operator intends to make of the tidal waters or land in

 

exercising that right (even if the operator may only use the

 

tidal waters or land in that way pursuant to powers

 

conferred by an enactment), and


 
 

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(b)    

must not be assessed on the basis of the value of the tidal

 

water right to the holder of the Crown interest.

 

      (5)  

The market value must be assessed on the assumption that there is

 

more than one site which the operator could use for the purpose for

 

which the operator intends to use the tidal waters or land in question

 

(whether or not that is actually the case).

 

Part 10

 

Undertaker’s works affecting electronic communications

 

apparatus

 

Introductory

 

62         

This Part of this code makes provision about the carrying out of

 

undertaker’s works by undertakers or operators.

 

Key definitions

 

63  (1)  

In this Part of this code—

 

“undertaker” means a person (including a local authority) of a

 

description set out in any of the entries in the first column of the

 

following table;

 

“undertaker’s works”, in relation to an undertaker of a description set

 

out in a particular entry in the first column of the table, means works

 

of the description set out in the corresponding entry in the second

 

column of the table.

 

“undertaker”

“undertaker’s works”

 
 

A person authorised by any enactment

Works that the undertaker is

 
 

(whether public general or local) or

authorised to carry out for the

 
 

by any order or scheme made under or

purposes of, or in connection with, the

 
 

confirmed by any enactment to carry

undertaking which it carries on

 
 

on any railway, tramway, road

  
 

transport, water transport, canal,

  
 

inland navigation, dock, harbour, pier

  
 

or lighthouse undertaking

  
 

A person (apart from an operator) to

Works that the undertaker is

 
 

whom this code is applied by a

authorised to carry out by or in

 
 

direction under section 106 of the

accordance with any provision of this

 
 

Communications Act 2003

code

 
 

Any person to whom this Part of this

Works for the purposes of which this

 
 

code is applied by any enactment

paragraph is applied to the undertaker

 
 

(whenever passed or made)

  
 

      (2)  

In this Part of this code—

 

(a)    

a reference to undertaker’s works which interfere with a

 

network is a reference to any undertaker’s works which

 

involve, or are likely to involve, an alteration of any

 

electronic communications apparatus kept on, under or

 

over any land for the purposes of an operator’s network;


 
 

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(b)    

a reference to an alteration of any electronic

 

communications apparatus is a reference to a temporary or

 

permanent alteration of the apparatus.

 

When can an undertaker carry out non-emergency undertaker’s works?

 

64  (1)  

Before carrying out non-emergency undertaker’s works which

 

interfere with a network, an undertaker must give the operator

 

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

 

works”).

 

      (2)  

Notice of proposed works must specify—

 

(a)    

the nature of the proposed undertaker’s works,

 

(b)    

the alteration of the electronic communications apparatus

 

which the works involve or are likely to involve, and

 

(c)    

the time and place at which the works will begin.

 

      (3)  

The undertaker must not begin the proposed undertaker’s works

 

(including the proposed alteration of electronic communications

 

apparatus) until the notice period has ended.

 

      (4)  

But the undertaker’s power to alter electronic communications

 

apparatus (in carrying out the proposed undertaker’s works) is

 

subject to paragraph 65.

 

      (5)  

In this paragraph—

 

“non-emergency undertaker’s works” means any undertaker’s works

 

which are not emergency works under paragraph 68;

 

“notice period” means the period of 10 days beginning with the day on

 

which notice of proposed works is given.

 

What is the effect of the operator giving counter-notice to the undertaker?

 

65  (1)  

This paragraph applies if an undertaker gives an operator notice of

 

proposed works under paragraph 64.

 

      (2)  

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

 

notice (“counter-notice”) stating either—

 

(a)    

that the operator requires the undertaker to make any

 

alteration of the electronic communications apparatus that

 

is necessary or expedient because of the proposed

 

undertaker’s works—

 

(i)    

under the supervision of the operator, and

 

(ii)    

to the satisfaction of the operator; or

 

(b)    

that the operator intends to make any alteration of the

 

electronic communications apparatus that is necessary or

 

expedient because of the proposed undertaker’s works.

 

      (3)  

In a case where counter-notice contains a statement under sub-

 

paragraph (2)(a), the undertaker must act in accordance with the

 

counter-notice when altering electronic communications apparatus

 

(in carrying out the proposed undertaker’s works).

 

      (4)  

But, if the operator unreasonably fails to provide the required

 

supervision, the undertaker must act in accordance with the

 

counter-notice only insofar as it requires alterations to be made to

 

the satisfaction of the operator.


 
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Revised 16 January 2015