Infrastructure Bill (HC Bill 987)

(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
20order 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) 25the 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
30agreement 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
35to 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.

40Temporary 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
45right 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
5operation 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
10the 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
15repair.

(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) 20paragraph 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
25paragraph 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
30the 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) 35references 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) 40Sub-paragraph (8) applies where, in the course of the proceedings
under paragraph 19, it is shown that a person with an interest in
the land was entitled to require the removal of the apparatus
immediately after it was installed.

(8) The court must, in determining for the purposes of paragraph 19
45whether the apparatus should continue to be kept on, under or
over the land, disregard the fact that the apparatus has already
been installed there.

Part 5 Termination and modification of agreements

Introductory

28 This Part of this code makes provision about—

(a) 5the continuation of code rights after the time at which they
cease to be exercisable under an agreement,

(b) the procedure for bringing an agreement to an end,

(c) the procedure for changing an agreement relating to code
rights, and

(d) 10the arrangements for the making of payments under an
agreement whilst disputes under this Part are resolved.

Application of this Part

29 (1) This Part of this code applies to an agreement under Part 2 of this
code, subject to sub-paragraphs (2) to (4).

(2) 15This Part of this code does not apply to a lease of land in England
and Wales if—

(a) its primary purpose is not to grant code rights, and

(b) it is a lease to which Part 2 of the Landlord and Tenant Act
1954 (security of tenure for business, professional and
20other tenants) applies.

(3) In determining whether a lease is one to which Part 2 of the
Landlord and Tenant Act 1954 applies, any agreement under
section 38A (agreements to exclude provisions of Part 2) of that
Act is to be disregarded.

(4) 25This Part of this code does not apply to a lease of land in Northern
Ireland if—

(a) its primary purpose is not to grant code rights, and

(b) it is a lease to which the Business Tenancies (Northern
Ireland) Order 1996 (SI 1996/725 (NI 5)SI 1996/725 (NI 5)) applies.

(5) 30An agreement to which this Part of this code applies is referred to
in this code as a “code agreement”.

Continuation of code rights

30 (1) Sub-paragraph (2) applies if—

(a) a code right is conferred by, or is otherwise binding on, a
35person (the “site provider”) as the result of a code
agreement, and

(b) under the terms of the agreement—

(i) the right ceases to be exercisable or the site
provider ceases to be bound by it, or

(ii) 40the site provider may bring the code agreement to
an end so far as it relates to that right.

(2) Where this sub-paragraph applies the code agreement continues
so that—

(a) the operator may continue to exercise that right, and

(b) the site provider continues to be bound by the right.

(3) Sub-paragraph (2) does not apply to a code right which is
conferred by, or is otherwise binding on, a person by virtue of an
5order under paragraph 26 (interim code rights) or 27 (temporary
code rights).

(4) Sub-paragraph (2) is subject to the following provisions of this
Part of this code.

How may a person bring a code agreement to an end?

31 (1) 10A site provider who is a party to a code agreement may bring the
agreement to an end by giving a notice in accordance with this
paragraph to the operator who is a party to the agreement.

(2) The notice must—

(a) comply with paragraph 86 (notices given by persons other
15than operators),

(b) specify the date on which the site provider proposes the
code agreement should come to an end, and

(c) state the ground on which the site provider proposes to
bring the code agreement to an end.

(3) 20The date specified under sub-paragraph (2)(b) must fall—

(a) after the end of the period of 18 months beginning with the
day on which the notice is given, and

(b) after the time at which, apart from paragraph 30, the code
right to which the agreement relates would have ceased to
25be exercisable or to bind the site provider or at a time
when, apart from that paragraph, the code agreement
could have been brought to an end by the site provider.

(4) The ground stated under sub-paragraph (2)(c) must be one of the
following—

(a) 30that the code agreement ought to come to an end as a result
of substantial breaches by the operator of its obligations
under the agreement;

(b) that the code agreement ought to come to an end because
of persistent delays by the operator in making payments to
35the site provider under the agreement;

(c) that the site provider intends to redevelop all or part of the
land to which the code agreement relates, or any
neighbouring land, and could not reasonably do so unless
the code agreement comes to an end;

(d) 40that the operator is not entitled to the code agreement
because the test under paragraph 20 for the imposition of
the agreement on the site provider is not met.

What is the effect of a notice under paragraph 31?

32 (1) Where a site provider gives a notice under paragraph 31, the code
45agreement to which it relates comes to an end in accordance with
the notice unless—

(a) within the period of three months beginning with the day
on which the notice is given, the operator gives the site
provider a counter-notice in accordance with sub-
paragraph (3), and

(b) 5within the period of three months beginning with the day
on which the counter-notice is given, the operator applies
to the court for an order under paragraph 34.

(2) Sub-paragraph (1) does not apply if the operator and the site
provider agree to the continuation of the code agreement.

(3) 10The counter-notice must state—

(a) that the operator does not want the existing code
agreement to come to an end,

(b) that the operator wants the site provider to agree to confer
or be otherwise bound by the existing code right on new
15terms, or

(c) that the operator wants the site provider to agree to confer
or be otherwise bound by a new code right in place of the
existing code right.

(4) If, on an application under sub-paragraph (1)(b), the court decides
20that the site provider has established any of the grounds stated in
the site provider’s notice under paragraph 31, the court must
order that the code agreement comes to an end in accordance with
the order.

(5) Otherwise the court must make one of the orders specified in
25paragraph 34.

How may a party to a code agreement require a change to the terms of an agreement
which has expired?

33 (1) An operator or site provider who is a party to a code agreement by
which a code right is conferred by or otherwise binds the site
30provider may, by notice in accordance with this paragraph,
require the other party to the agreement to agree that—

(a) the code agreement should have effect with modified
terms,

(b) where under the code agreement more than one code right
35is conferred by or otherwise binds the site provider, that
the agreement should no longer provide for an existing
code right to be conferred by or otherwise bind the site
provider,

(c) the code agreement should—

(i) 40confer an additional code right on the operator, or

(ii) provide that the site provider is otherwise bound
by an additional code right, or

(d) the existing code agreement should be terminated and a
new agreement should have effect between the parties
45which—

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

(ii) provides for a code right to bind the site provider.

(2) The notice must—