Infrastructure Bill (HC Bill 999)

(4) Where under the code agreement more than one code right is
conferred by or otherwise binds the site provider, the court may
order that the code agreement has effect so that it no longer
provides for an existing code right to be conferred by or otherwise
5bind the site provider.

(5) The court may order that the code agreement relating to the
existing code right has effect so that—

(a) it confers an additional code right on the operator, or

(b) it provides that the site provider is otherwise bound by an
10additional code right.

(6) The court may order the termination of the code agreement
relating to the existing code right (subject to sub-paragraph (10)),
and order the operator and the site provider to enter into a new
agreement which—

(a) 15confers a code right on the operator, or

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

(7) The terms of the new agreement are to be such as are agreed
between the operator and site provider.

(8) If the operator and the site provider are unable to agree on the
20terms of the new agreement, the court must on an application by
either party make an order specifying those terms.

(9) Paragraphs 22(2) to (8), 23, 25 and 81 apply to an order under sub-
paragraph (8) as they apply to an order under paragraph 19; but
the court must also have regard to the terms of the existing code
25agreement in determining the terms of the new agreement.

(10) The existing code agreement continues until the new agreement
takes effect.

(11) This code applies to the new agreement as if it were an agreement
under Part 2 of this code.

(12) 30In determining which order to make under this paragraph, the
court must have regard to all the circumstances of the case, and in
particular to—

(a) the operator’s business and technical needs,

(b) the use that the site provider is making of the land to which
35the existing code agreement relates,

(c) any duties imposed on the site provider by an enactment,
and

(d) the amount of consideration payable by the operator to the
site provider under the existing code agreement.

(13) 40Where the court makes an order under this paragraph, it may also
order the operator to pay the site provider the amount (if any) by
which A exceeds B, where—

(a) A is the amount of consideration that would have been
payable by the operator to the site provider for the relevant
45period if that amount had been assessed on the same basis
as the consideration payable as the result of order, and

(b) B is the amount of consideration payable by the operator to
the site provider for the relevant period.

(14) In sub-paragraph (13) the relevant period is the period (if any)
that—

(a) 5begins on the date on which, apart from the operation of
paragraph 30, the code right would have ceased to be
exercisable or to bind the site provider or from which,
apart from that paragraph, the code agreement could have
been brought to an end by the site provider, and

(b) 10ends on the date on which the order is made.

What arrangements for payment can be made pending determination of the
application?

35 (1) This paragraph applies where—

(a) a code right continues to be exercisable under paragraph
1530 after the time at which, apart from the operation of that
paragraph, the code right would have ceased to be
exercisable or to bind the site provider or from which,
apart from that paragraph, the code agreement could have
been brought to an end by the site provider, and

(b) 20the operator or the site provider has applied to the court
for an order under paragraph 32(1)(b) or 33(5).

(2) The site provider may—

(a) agree with the operator that, until the application has been
finally determined, the site provider will continue to
25receive the payments of consideration from the operator to
which the site provider is entitled under the agreement
relating to the existing code right,

(b) agree with the operator that, until that time, the site
provider will receive different payments of consideration
30under that agreement, or

(c) apply to the court for the court to determine the payments
of consideration to be made by the operator to the site
provider under that agreement until that time.

(3) The court must determine the payments under sub-paragraph
35(3)(c) on the basis set out in paragraph 23 (calculation of
consideration).

Part 6 Rights to require removal of electronic communications apparatus

Introductory

36 40This Part of this code makes provision about—

(a) the cases in which a person with an interest in land has the
right to require the removal of electronic communications
apparatus,

(b) the means by which a person can discover whether
45apparatus is on land pursuant to a code right, and

(c) the means by which a right to require removal can be
enforced.

When does a person have the right to require removal of electronic communications
apparatus?

37 (1) 5A person with an interest in land (a “landowner”) has the right to
require the removal of electronic communications apparatus on,
under or over the land if (and only if) one or more of the following
conditions are met.

(2) The first condition is that the landowner has never been bound by
10a code right entitling an operator to keep the apparatus on, under
or over the land.

(3) The second condition is that a code right entitling an operator to
keep the apparatus on, under or over the land has come to an end
or has ceased to bind the landowner—

(a) 15as the result of paragraph 32(1), or

(b) as the result of an order under paragraph 32(4) or 34(4) or
(6).

This is subject to sub-paragraph (4).

(4) The landowner does not meet the first or second condition if—

(a) 20the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling
an operator to keep the apparatus on, under or over
the land, or

(ii) is otherwise bound by such a right, and

(b) 25that code right was not conferred in breach of a covenant
enforceable by the landowner.

(5) The third condition is that—

(a) an operator has the benefit of a code right entitling the
operator to keep the apparatus on, under or over the land,
30but

(b) the apparatus is not, or is no longer, used for the purposes
of the operator’s network, and

(c) there is no reasonable likelihood that the apparatus will be
be used for that purpose.

(6) 35The fourth condition is that—

(a) this code has ceased to apply to a person so that the person
is no longer entitled under this code to keep the apparatus
on, under or over the land,

(b) the retention of the apparatus on, under or over the land is
40not authorised by a scheme contained in an order under
section 117, and

(c) there is no other person with a right conferred by or under
this code to keep the apparatus on, under or over the land.

(7) The fifth condition is that—

(a) 45the apparatus was kept on, under or over the land
pursuant to—

(i) a transport land right (see Part 7), or

(ii) a street work right (see Part 8),

(b) that right has ceased to be exercisable in relation to the
land by virtue of paragraph 50(9) or 56(8), and

(c) 5there is no other person with a right conferred by or under
this code to keep the apparatus on, under or over the land.

How does a person find out whether apparatus is on land pursuant to a code right?

38 (1) A landowner may by notice require an operator to disclose
whether—

(a) 10the operator owns electronic communications apparatus
on, under or over land in which the landowner has an
interest or uses such apparatus for the purposes of the
operator’s network, or

(b) the operator has the benefit of a code right entitling the
15operator to keep electronic communications apparatus on,
under or over land in which the landowner has an interest.

(2) The notice must comply with paragraph 86 (notices given by
persons other than operators).

(3) Sub-paragraph (4) applies if—

(a) 20the operator does not, before the end of the period of three
months beginning with the date on which the notice under
sub-paragraph (1) was given, give a notice to the
landowner that—

(i) complies with paragraph 85 (notices given by
25operators), and

(ii) discloses the information sought by the landowner,

(b) the landowner takes action under paragraph 39 to enforce
the removal of the apparatus, and

(c) it is subsequently established that—

(i) 30the operator owns the apparatus or uses it for the
purposes of the operator’s network, and

(ii) the operator has the benefit of a code right entitling
the operator to keep the apparatus on, under or
over the land.

(4) 35The operator must nevertheless bear the costs of any action taken
by the landowner under paragraph 39 to enforce the removal of
the apparatus.

How does a person enforce removal of apparatus?

39 (1) A landowner who has the right to require the removal of electronic
40communications apparatus on, under or over land may, in
accordance with this paragraph, require the operator whose
apparatus it is—

(a) to remove the apparatus, and

(b) to restore the land to its condition before the apparatus
45was placed on, under or over the land.

(2) The landowner may give a notice to the operator requiring the
operator—

(a) to remove the apparatus, and

(b) to restore the land to its condition before the apparatus
5was placed on, under or over the land.

(3) The notice must—

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

(b) specify the period within which the operator must
10complete the works.

(4) The period specified under sub-paragraph (3) must be a
reasonable one.

(5) Sub-paragraph (6) applies if, within the period of 28 days
beginning with the day on which the notice was given, the
15landowner and the operator do not reach agreement on any of the
following matters—

(a) that the operator will remove the apparatus;

(b) that the operator will restore the land to its condition
before the apparatus was placed on, under or over the
20land;

(c) the time at which or period within which the apparatus
will be removed;

(d) the time at which or period within which the land will be
restored.

(6) 25The landowner may make an application to the court for—

(a) an order under paragraph 40(1) (order requiring operator
to sell apparatus etc), or

(b) an order under paragraph 40(2) (order enabling
landowner to sell apparatus etc).

(7) 30If the court makes an order under paragraph 40(1), but the
operator does not comply with the agreement imposed on the
operator and the landowner by virtue of paragraph 40(5), the
landowner may make an application to the court for an order
under paragraph 40(2).

35What orders may the court make on an application under paragraph 39?

40 (1) An order under this paragraph is an order that the operator must,
within the period specified in the order—

(a) remove the apparatus, and

(b) restore the land to its condition before the apparatus was
40placed on, under or over the land.

(2) An order under this paragraph is an order that the landowner may
do any of the following—

(a) remove or arrange the removal of the electronic
communications apparatus;

(b) 45sell any apparatus so removed;

(c) recover the costs of any action under paragraph (a) or (b)
from the operator;

(d) recover from the operator the costs of restoring the land to
its condition before the apparatus was placed on, under or
over the land;

(e) retain the proceeds of sale of the apparatus to the extent
5that these do not exceed the costs incurred by the
landowner as mentioned in paragraph (c) or (d).

(3) An order under this paragraph may require the operator to pay
compensation to the landowner for any loss or damage suffered
by the landowner as a result of the presence of the apparatus on
10the land during the period when the landowner had the right to
require the removal of the apparatus from the land but was not
able to exercise that right.

(4) Paragraph 81 makes further provision about compensation under
sub-paragraph (3).

(5) 15An order under sub-paragraph (1) takes effect as an agreement
between the operator and the landowner that—

(a) requires the operator to take the steps specified in the
order, and

(b) otherwise contains such terms as the court may so specify.

20Part 7 Conferral of transport land rights and their exercise

Introductory

41 This Part of this code makes provision about—

(a) the conferral of transport land rights, and

(b) 25the exercise of transport land rights.

Transport land and transport undertakers

42 In this Part of this code—

• “transport land” means land which is used wholly or
  mainly—

  (a)

  30as a railway, canal or tramway, or

  (b)

  in connection with a railway, canal or tramway on the
  land;

• “transport undertaker”, in relation to transport land, means
  the person carrying on the railway, canal or tramway
  35undertaking.

Conferral of transport land rights

43 (1) An operator may exercise a transport land right for the statutory
purposes.

(2) But that is subject to the following provisions of this Part of this
40code.

The transport land rights

44 (1) For the purposes of this code a “transport land right”, in relation
to an operator, is—

(a) a right to cross any transport land with a line;

(b) 5a right, for the purposes of crossing any transport land
with a line—

(i) to install and keep the line and any other electronic
communications apparatus on, under or over the
transport land;

(ii) 10to inspect, maintain, adjust, alter, repair, upgrade
or operate electronic communications apparatus
on, under or over the transport land;

(iii) a right to carry out any works on the transport land
for or in connection with the exercise of a right
15under sub-paragraph (i) or (ii);

(iv) a right to enter the transport land to inspect,
maintain, adjust, alter, repair, upgrade or operate
the line or other electronic communications
apparatus.

(2) 20A line installed in the exercise of a transport land right need not
cross the transport land in question by a direct route or the
shortest route from the point at which the line enters the transport
land.

(3) But the line must not cross the transport land by any route which,
25in the horizontal plane, exceeds that shortest route by more than
400 metres.

(4) The transport land rights do not authorise an operator to install a
line or other electronic communications apparatus in any position
on transport land in which the line or other apparatus would
30interfere with traffic on the railway, canal or tramway.

Non-emergency works: when can an operator exercise the transport land rights?

45 (1) Before exercising a transport land right in order to carry out non-
emergency works, the operator must give the transport
undertaker notice of the intention to carry out the works (“notice
35of proposed works”).

(2) Notice of proposed works must contain a plan and section of the
works; but, if the transport undertaker agrees, the notice may
instead contain a description of the works (whether or not in the
form of a diagram).

(3) 40The operator must not begin the proposed works until the notice
period has ended.

(4) But the operator’s power to carry out the proposed works is
subject to paragraph 46.

(5) In this paragraph—

• 45“non-emergency works” means any works which are not
  emergency works under paragraph 47;

Infrastructure BillPage 147

• “notice period” means the period of 28 days beginning with
  the day on which notice of proposed works is given.

What is the effect of the transport undertaker giving notice of objection to the operator?

46 (1) This paragraph applies if an operator gives a transport undertaker
5notice of proposed works under paragraph 45.

(2) The transport undertaker may, within the notice period, give the
operator notice objecting to the proposed works (“notice of
objection”).

(3) If notice of objection is given, the operator or the transport
10undertaker may, within the arbitration notice period, give the
other notice that the objection is to be referred to arbitration under
paragraph 48 (“arbitration notice”).

(4) In a case where notice of objection is given, the operator may
exercise a transport land right in order to carry out the proposed
15works only if they are permitted under sub-paragraph (5) or (6).

(5) Works are permitted in a case where—

(a) the arbitration notice period has ended, and

(b) no arbitration notice has been given.

(6) In a case where arbitration notice has been given, works are
20permitted in accordance with an award made on the arbitration.

(7) In this paragraph—

(a) “arbitration notice period” means the period of 28 days
beginning with the day on which objection notice is given;

(b) expressions defined in paragraph 45 have the same
25meanings as in that paragraph.

Emergency works: when can an operator exercise the transport land rights?

47 (1) An operator may exercise a transport land right in order to carry
out emergency works.

(2) If the operator exercises a transport land right to carry out
30emergency works, the operator must give the transport
undertaker an emergency works notice as soon as reasonably
practicable after starting the works.

(3) An “emergency works notice” is a notice which—

(a) identifies the emergency works;

(b) 35contains a statement of the reason why the works are
emergency works; and

(c) contains either—

(i) the matters which would be included in a notice of
proposed works (if one were given in relation to
40the works), or

(ii) a reference to a notice of proposed works which
relates to the works that are emergency works (if
one has been given).

(4) A transport undertaker may, within the compensation notice
period, give the operator notice which requires the operator to pay
compensation for loss or damage sustained in consequence of the
carrying out of emergency works (“compensation notice”).

(5) 5The operator must pay the transport undertaker any
compensation which is required by a compensation notice (if
given within the compensation notice period).

(6) The amount of compensation payable under sub-paragraph (5) is
to be agreed between the operator and the transport undertaker.

(7) 10But if—

(a) the compensation agreement period has ended, and

(b) the operator and the transport undertaker have not agreed
the amount of compensation payable under sub-
paragraph (6),

15the operator or the transport undertaker may give the other notice
that the disagreement is to be referred to arbitration under
paragraph 48.

(8) A reference in this paragraph to emergency works includes a
reference to any works which are included in a notice of proposed
20works but become emergency works before the operator is
authorised by paragraph 46 or 47 to carry them out.

(9) In this paragraph—

• “compensation agreement period” means the period of 28
  days beginning with the day on which a compensation
  25notice is given;

• “compensation notice period” means the period of 28 days
  beginning with the day on which an emergency works
  notice is given;

• “emergency works” means works carried out in order to stop
  30anything already occurring, or to prevent anything
  imminent from occurring, which is likely to cause—

  (a)

  danger to persons or property,

  (b)

  the interruption of any service provided by the
  operator’s network,

  (c)

  35substantial loss to the operator,

  and any other works which it is reasonable (in all the
  circumstances) to carry out with those works;

• “notice of proposed works” means such notice given under
  paragraph 45.

40What happens if a dispute about the transport land rights is referred to arbitration?

48 (1) This paragraph applies if notice is given under paragraph 46(3) or
47(7) that the following matter (the “matter in dispute”) is to be
referred to arbitration—

(a) an objection to proposed works;

(b) 45a disagreement about an amount of compensation.

(2) The matter in dispute is to be referred to the arbitration of a single
arbitrator appointed—

(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