Digital Economy Bill (HC Bill 45)

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

(5) The court may order the terms of the code agreement relating to
the existing code right to be modified 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 and order the operator and the
site provider to enter into a new agreement which—

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

(b) 15provides for a code right to bind the site provider.

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

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

(9) 20The terms conferring or providing for an additional code right
under sub-paragraph (5), and the terms of a new agreement under
sub-paragraph (6), are to be such as are agreed between the
operator and the site provider.

(10) If the operator and the site provider are unable to agree on the
25terms, the court must on an application by either party make an
order specifying those terms.

(11) Paragraphs 22(2) to (8), 23, 24 and 80 apply—

(a) to an order under sub-paragraph (3), (4) or (5), so far as it
modifies or specifies the terms of the agreement, and

(b) 30to an order under sub-paragraph (10)

as they apply to an order under paragraph 19.

(12) In the case of an order under sub-paragraph (10) the court must
also have regard to the terms of the existing code agreement.

(13) In determining which order to make under this paragraph, the
35court 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
the existing code agreement relates,

(c) 40any 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.

(14) Where the court makes an order under this paragraph, it may also
45order the operator to pay the site provider the amount (if any) by
which A exceeds B, where—

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

(b) 5B is the amount of consideration payable by the operator to
the site provider for the relevant period.

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

(a) begins on the date on which, apart from the operation of
10paragraph 29, the code right to which the existing code
agreement relates 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) 15ends on the date on which the order is made.

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

34 (1) This paragraph applies where—

(a) a code right continues to be exercisable under paragraph
2029 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 relating to
the right could have been brought to an end by the site
25provider, and

(b) the operator or the site provider has applied to the court
for an order under paragraph 31(1)(b) or 32(5).

(2) The site provider may—

(a) agree with the operator that, until the application has been
30finally determined, the site provider will continue to
receive 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
35provider will receive different payments of consideration
under 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) 40The court must determine the payments under sub-paragraph
(2)(c) on the basis set out in paragraph 23 (calculation of
consideration).

Part 6 Rights to require removal of electronic communications apparatus

45Introductory

35 This Part of this code makes provision about—

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(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
5apparatus 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?

36 (1) 10A 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
15a 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) 20as mentioned in paragraph 25(7) and (8);

(b) as the result of paragraph 31(1), or

(c) as the result of an order under paragraph 31(4) or 33(4) or
(6).

This is subject to sub-paragraph (4).

(4) 25The landowner does not meet the first or second condition if—

(a) the 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) 30is otherwise bound by such a right, and

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

(5) In the application of sub-paragraph (4)(b) to Scotland the reference
to a covenant enforceable by the landowner is to be read as a
35reference to a contractual term which is so enforceable.

(6) 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,
but

(b) 40the 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
used for that purpose.

(7) The fourth condition is that—

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(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
5not 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.

(8) The fifth condition is that—

(a) 10the 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
15land by virtue of paragraph 49(9) or 55(8), 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.

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

37 (1) A landowner may by notice require an operator to disclose
20whether—

(a) the 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) 25the operator has the benefit of a code right entitling the
operator to keep electronic communications apparatus on,
under or over land in which the landowner has an interest.

(2) The notice must comply with paragraph 85 (notices given by
persons other than operators).

(3) 30Sub-paragraph (4) applies if—

(a) the 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) 35complies with paragraph 84 (notices given by
operators), and

(ii) discloses the information sought by the landowner,

(b) the landowner takes action under paragraph 38 to enforce
the removal of the apparatus, and

(c) 40it is subsequently established that—

(i) the 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
45over the land.

(4) The operator must nevertheless bear the costs of any action taken
by the landowner under paragraph 38 to enforce the removal of
the apparatus.

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How does a person enforce removal of apparatus?

38 (1) A landowner who has the right to require the removal of electronic
communications apparatus on, under or over land may, in
accordance with this paragraph, require the operator whose
5apparatus it is—

(a) to remove the apparatus, and

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

(2) The landowner may give a notice to the operator requiring the
10operator—

(a) to remove the apparatus, and

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

(3) The notice must—

(a) 15comply with paragraph 85 (notices given by persons other
than operators), and

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

(4) The period specified under sub-paragraph (3) must be a
20reasonable one.

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

(a) 25that 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
land;

(c) the time at which or period within which the apparatus
30will be removed;

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

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

(a) an order under paragraph 39(1) (order requiring operator
35to remove apparatus etc), or

(b) an order under paragraph 39(2) (order enabling
landowner to sell apparatus etc).

(7) If the court makes an order under paragraph 39(1), but the
operator does not comply with the agreement imposed on the
40operator and the landowner by virtue of paragraph 39(5), the
landowner may make an application to the court for an order
under paragraph 39(2).

What orders may the court make on an application under paragraph 38?

39 (1) An order under this sub-paragraph is an order that the operator
45must, within the period specified in the order—

(a) remove the electronic communications apparatus, and

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

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

(a) 5remove or arrange the removal of the electronic
communications apparatus;

(b) sell any apparatus so removed;

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

(d) 10recover 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
that these do not exceed the costs incurred by the
15landowner 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
the land during the period when the landowner had the right to
20require the removal of the apparatus from the land but was not
able to exercise that right.

(4) Paragraph 80 makes further provision about compensation under
sub-paragraph (3).

(5) An order under sub-paragraph (1) takes effect as an agreement
25between 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.

Part 7 30Conferral of transport land rights and their exercise

Introductory

40 This Part of this code makes provision about—

(a) the conferral of transport land rights, and

(b) the exercise of transport land rights.

35Transport land and transport undertakers

41 In this Part of this code—

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

    (a)

    as a railway, canal or tramway, or

    (b)

    40in 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
    undertaking.

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Conferral of transport land rights

42 (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
5code.

The transport land rights

43 (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) 10a 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) 15to 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
20under 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) 25A 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,
30in 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
35interfere with traffic on the railway, canal or tramway.

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

44 (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
40of 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).

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(3) The 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 45.

(5) 5In this paragraph—

  • “non-emergency works” means any works which are not
    emergency works under paragraph 46;

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

10What is the effect of the transport undertaker giving notice of objection to the operator?

45 (1) This paragraph applies if an operator gives a transport undertaker
notice of proposed works under paragraph 44.

(2) The transport undertaker may, within the notice period, give the
operator notice objecting to the proposed works (“notice of
15objection”).

(3) If notice of objection is given, the operator or the transport
undertaker may, within the arbitration notice period, give the
other notice that the objection is to be referred to arbitration under
paragraph 47 (“arbitration notice”).

(4) 20In a case where notice of objection is given, the operator may
exercise a transport land right in order to carry out the proposed
works 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) 25no arbitration notice has been given.

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

(7) In this paragraph—

(a) “arbitration notice period” means the period of 28 days
30beginning with the day on which objection notice is given;

(b) expressions defined in paragraph 44 have the same
meanings as in that paragraph.

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

46 (1) An operator may exercise a transport land right in order to carry
35out emergency works.

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

(3) 40An “emergency works notice” is a notice which—

(a) identifies the emergency works;

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

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(c) contains either—

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

(ii) 5a 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
10compensation for loss or damage sustained in consequence of the
carrying out of emergency works (“compensation notice”).

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

(6) 15The amount of compensation payable under sub-paragraph (5) is
to be agreed between the operator and the transport undertaker.

(7) But if—

(a) the compensation agreement period has ended, and

(b) the operator and the transport undertaker have not agreed
20the amount of compensation payable under sub-
paragraph (6),

the operator or the transport undertaker may give the other notice
that the disagreement is to be referred to arbitration under
paragraph 47.

(8) 25A reference in this paragraph to emergency works includes a
reference to any works which are included in a notice of proposed
works but become emergency works before the operator is
authorised by paragraph 45 or 46 to carry them out.

(9) In this paragraph—

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

  • “compensation notice period” means the period of 28 days
    beginning with the day on which an emergency works
    35notice is given;

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

    (a)

    danger to persons or property,

    (b)

    40the interruption of any service provided by the
    operator’s network, or

    (c)

    substantial loss to the operator,

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

  • 45“notice of proposed works” means such notice given under
    paragraph 44.

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

47 (1) This paragraph applies if notice is given under paragraph 45(3) or
46(7) that the following matter (the “matter in dispute”) is to be
referred to arbitration—

(a) 5an objection to proposed works;

(b) a 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) 10in 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
arbitrator has the following powers—

(a) power to require the operator to give the arbitrator a plan
15and section in such form as the arbitrator thinks
appropriate;

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

(c) 20power to impose on either party any other requirements
which the arbitrator thinks appropriate (including a
requirement to provide information in such form as the
arbitrator thinks appropriate);

(d) power to make an award—

(i) 25requiring modifications to the proposed works,
and

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

(e) 30power to award one or both of the following, payable to
the transport undertaker—

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

(ii) 35consideration 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) power to impose on either party any requirements which
the arbitrator thinks appropriate (including a requirement
40to provide information in such form as the arbitrator
thinks appropriate);

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

(5) 45The 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).