Infrastructure Bill (HC Bill 154)

(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.

Part 11 5Overhead apparatus

Introductory

70 This Part of this code—

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

(b) 10imposes 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
15operator’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) 20are 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
25on 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
30carrying 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) 35This 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
40metres 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) 5if 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—

(a) 10must 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
15question.

(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
20guilty 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
25committing the offence.

Part 12 Rights to object to certain apparatus

Introductory

73 This Part of this code makes provision conferring rights to object
30to 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.

35When 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) 40In 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
5tidal 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
10code if the person—

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

(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) 15electronic 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
20code 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) 25the 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
30the 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) 35A 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
40months 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) 5At 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
10are 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.

(5) The second condition is that the court is not satisfied that the only
15possible 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
20(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
25to 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) 30authorise 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
35in 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) 40the 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
45provide 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) 5This 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) 10At 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) 15the 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
20operator’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
25be 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
30paragraph.

(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
35the 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) 40This 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
5court 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
10court, 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) 15For 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) 20For 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 25Rights 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) 30the 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) 35In 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) 40The 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
45the 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.

(5) Sub-paragraph (6) applies if at any time a notice under sub-
5paragraph (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
10force.

(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
15husband-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
20notice 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
25complying 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 30This 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) 35the 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
40the 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.

(3) 5For 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) 10in 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
15Article 6(1) of the Land Compensation (Northern Ireland)
Order 1982 (SI 1982/712 (NI 9)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
20relation 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
25compensation 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)SI 1973/1896 (NI 21)) (compensation in
30respect 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
35paragraph 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) 40This 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
45Compulsory 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
5Consolidation (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.

(4) Any question as to a person’s entitlement to compensation by
10virtue 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
15Land Compensation (Northern Ireland) Order 1982 (SI 1982/712SI 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) 20Any 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
25paragraph 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) 30Compensation 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 35Except as provided by any provision of Parts 2 to 13 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.

40Part 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) 5about 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
10notice, and

(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
15given 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) 20In 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) 25Sub-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
30valid 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
35provision 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) 40the operator has, in giving the notice, drawn the person’s
attention to the form prescribed by OFCOM.