Infrastructure Bill (HC Bill 987)

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(a) by agreement between the parties, or

(b) in the absence of such agreement, by the President of the
Institution of Civil Engineers.

(3) If the matter in dispute is an objection to proposed works, the
5arbitrator has the following powers—

(a) power to require the operator to give the arbitrator a plan
and section in such form as the arbitrator thinks
appropriate;

(b) power to require the transport undertaker to give the
10arbitrator any observations on such a plan or section in
such form as the arbitrator thinks appropriate;

(c) power to impose on either party any other requirements
which the arbitrator thinks appropriate (including a
requirement to provide information in such form as the
15arbitrator thinks appropriate);

(d) power to make an award—

(i) requiring modifications to the proposed works,
and

(ii) specifying the terms on which, and the conditions
20subject to which, the proposed works may be
carried out;

(e) power to award one or both of the following, payable to
the transport undertaker—

(i) compensation for loss or damage sustained by that
25person in consequence of the carrying out of the
works;

(ii) consideration for the right to carry out the works.

(4) If the matter in dispute is a disagreement about an amount of
compensation, the arbitrator has the following powers—

(a) 30power to impose on either party any requirements which
the arbitrator thinks appropriate (including a requirement
to provide information in such form as the arbitrator
thinks appropriate);

(b) power to award compensation, payable to the transport
35undertaker, for loss or damage sustained by that person in
consequence of the carrying out of the emergency works.

(5) The arbitrator may make an award conditional upon a party
complying with a requirement imposed under sub-paragraph
(3)(a), (b) or (c) or (4)(a).

(6) 40In determining what award to make, the matters to which the
arbitrator must have regard include the public interest in there
being access to a choice of high quality electronic communications
services.

(7) The arbitrator’s power under sub-paragraph (3) or (4) to award
45compensation for loss includes power to award compensation for
any increase in the expenses incurred by the transport undertaker
in carrying on its railway, canal or tramway undertaking.

(8) An award of consideration under sub-paragraph (3)(e)(ii) must be
determined on the basis of what would have been fair and

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reasonable if the transport undertaker had willingly given
authority for the works to be carried out on the same terms, and
subject to the same conditions (if any), as are contained in the
award.

(9) 5In this paragraph “party” means—

(a) the operator, or

(b) the transport undertaker.

When can a transport undertaker require an operator to alter communications
apparatus?

49 (1) 10A transport undertaker may give an operator notice which
requires the operator to alter a line or other electronic
communications apparatus specified in the notice (“notice
requiring alterations”) on the ground that keeping the apparatus
on, under or over transport land interferes with, or is likely to
15interfere 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) 20The 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,
25within 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
30transport 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) 35In 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
40terms 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,

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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—

  • 5“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.

10What 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
15continues 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).

(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
20with 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
25time 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
30replace 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
35apparatus, 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
40accordance 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
45sub-paragraph (8), the transport land rights cease to be exercisable
in relation to the land in accordance with this paragraph.

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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) 5An 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,
10paragraph 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 15This Part of this code makes provision about—

(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—

  • 20“road” means—

    (a)

    a road in Scotland which is a public road;

    (b)

    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
    25(SI 1993/3160 (NI 15)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
    30crosses, 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) 35But 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—

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(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
5operate 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
10of 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) 15The 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.

20What 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
25as 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
30sub-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
35land 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) 40The 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
45end of the period of 12 months beginning with the day on which
the notice of termination is given.

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(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 5Conferral 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.

10Tidal 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.

15Conferral 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.

20The 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) 25a 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
30right 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) 35The 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

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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
5exceeds 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
10willing 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) 15The 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
20tidal waters or 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 tidal
water right to the holder of the Crown interest.

(5) The market value must be assessed on the assumption that there
25is 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

30Introductory

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—

  • 35“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
    40of the table, means works of the description set out in the
    corresponding entry in the second column of the table.

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“undertaker” “undertaker’s works”
A person authorised by any
enactment (whether public
general or local) or by any order or
scheme made under or confirmed
by any enactment to carry on any
railway, tramway, road transport,
water transport, canal, inland
navigation, dock, harbour, pier or
lighthouse undertaking
Works that the undertaker is
authorised to carry out for the
purposes of, or in connection with,
5the undertaking which it carries
on



10
A person (apart from an operator)
to whom this code is applied by a
direction under section 106 of the
Communications Act 2003
Works that the undertaker is
authorised to carry out by or in
accordance with any provision of
this code
Any person to whom this Part of
this code is applied by any
enactment (whenever passed or
made)
15Works for the purposes of which
this paragraph is applied to the
undertaker

(2) In this Part of this code—

(a) 20a 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;

(b) 25a 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
30interfere 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) 35the 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
40apparatus) 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—

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  • “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
    5the 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
10notice (“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) 15under 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) 20In 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
25supervision, 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.

(5) In a case where counter-notice contains a statement under sub-
paragraph (2)(b) (operator intends to make alteration), the
30undertaker must not alter electronic communications apparatus
(in carrying out the proposed undertaker’s works).

(6) But that does not prevent the undertaker from making any
alteration of electronic communications apparatus which the
operator fails to make within a reasonable time.

(7) 35Expressions defined in paragraph 64 have the same meanings in
this paragraph.

What expenses must the undertaker pay?

66 (1) This paragraph applies if an undertaker carries out any non-
emergency undertaker’s works in accordance with paragraph 64
40(including in a case where counter-notice is given under
paragraph 65).

(2) The undertaker must pay the operator the amount of any loss or
damage sustained by the operator in consequence of any
alteration being made to electronic communications apparatus (in
45carrying out the works).

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(3) The undertaker must pay the operator any expenses incurred by
the operator in, or in connection with, supervising the undertaker
when altering electronic communications apparatus (in carrying
out the works).

(4) 5Any amount which is not paid in accordance with this paragraph
is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

When can the operator alter apparatus in connection with non-emergency undertaker’s
works?

67 (1) 10An operator may make an alteration of electronic communications
apparatus if—

(a) notice of proposed works has been given,

(b) the notice period has ended, and

(c) counter-notice has been given which states (in accordance
15with paragraph 65(2)(b)) that the operator intends to make
the alteration.

(2) If the operator makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection
20with, making the alteration; and

(b) the amount of any loss or damage sustained by the
operator in consequence of the alteration being made.

(3) Any amount which is not paid in accordance with sub-paragraph
(2) is to be recoverable by the operator from the undertaker in any
25court of competent jurisdiction.

(4) Expressions defined in paragraph 64 have the same meanings in
this paragraph.

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

68 (1) An undertaker may, in carrying out emergency undertaker’s
30works, make an alteration of any electronic communications
apparatus kept on, under or over any land for the purposes of an
operator’s network.

(2) The undertaker must give the operator notice of the emergency
undertaker’s works as soon as practicable after beginning them.

(3) 35This paragraph does not authorise the undertaker to make an
alteration of apparatus after any failure by the undertaker to give
notice in accordance with subsection (2).

(4) The undertaker must make the alteration to the satisfaction of the
operator.

(5) 40If the undertaker makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection
with, supervising the undertaker when making the
alteration; and