Digital Economy Bill (HC Bill 87)

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(i) O’s interest, or

(ii) the interest of a successor in title to O’s interest, and

(c) any other person at any time in occupation of the land
whose right to occupation was granted by—

(i) 5O, at a time when O was bound by the code right,
or

(ii) a person within paragraph (a) or (b).

(3) A successor in title who is bound by a code right by virtue of sub-
paragraph (2)(a) is to be treated as a party to the agreement by
10which O conferred the right.

(4) The code right also binds any other person with an interest in the
land who has agreed to be bound by it.

(5) If such a person (“P”) agrees to be bound by the code right, the
code right also binds—

(a) 15the successors in title to P’s interest,

(b) a person with an interest in the land that is created after P
agrees to be bound and is derived (directly or indirectly)
out of—

(i) P’s interest, or

(ii) 20the interest of a successor in title to P’s interest, and

(c) any other person at any time in occupation of the land
whose right to occupation was granted by—

(i) P, at a time when P was bound by the code right, or

(ii) a person within paragraph (a) or (b).

(6) 25A successor in title who is bound by a code right by virtue of sub-
paragraph (5)(a) is to be treated as a party to the agreement by
which P agreed to be bound by the right.

Requirements for agreements

11 (1) An agreement under this Part—

(a) 30must be in writing,

(b) must be signed by or on behalf of the parties to it,

(c) must state for how long the code right is exercisable, and

(d) must state the period of notice (if any) required to
terminate the agreement.

(2) 35Sub-paragraph (1)(a) and (b) also applies to the variation of an
agreement under this Part.

(3) The agreement as varied must still comply with sub-paragraph
(1)(c) and (d).

Exercise of code rights

12 (1) 40A code right is exercisable only in accordance with the terms
subject to which it is conferred.

(2) Anything done by an operator in the exercise of a code right
conferred under this Part in relation to any land is to be treated as
done in the exercise of a statutory power.

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(3) Sub-paragraph (2) does not apply against a person who—

(a) is the owner of the freehold estate in the land or the lessee
of the land, and

(b) is not for the time being bound by the code right.

(4) 5Sub-paragraph (2) does not apply against a person who has the
benefit of a covenant or agreement entered into as respects the
land, if—

(a) the covenant or agreement was entered into under a
enactment, and

(b) 10by virtue of the enactment, it binds or will bind persons
who derive title or otherwise claim—

(i) under the covenantor, or

(ii) under a party to the agreement.

(5) In the application of sub-paragraph (3) to Scotland the reference to
15a person who is the owner of the freehold estate in the land is to be
read as a reference to a person who is the owner of the land.

Access to land

13 (1) This paragraph applies to an operator by whom any of the
following rights is exercisable in relation to land—

(a) 20a code right within paragraph (a) to (e) or (g) of paragraph
3;

(b) a right under Part 8 (street works rights);

(c) a right under Part 9 (tidal water rights);

(d) a right under paragraph 74 (power to fly lines).

(2) 25The operator may not exercise the right so as to interfere with or
obstruct any means of access to or from any other land unless, in
accordance with this code, the occupier of the other land has
conferred or is otherwise bound by a code right within paragraph
(f) of paragraph 3.

(3) 30A reference in this code to a means of access to or from land
includes a means of access to or from land that is provided for use
in emergencies.

(4) This paragraph does not require a person to whom sub-paragraph
(5) applies to agree to the exercise of any code right on land other
35than the land mentioned in that sub-paragraph.

(5) This sub-paragraph applies to a person who is the occupier of, or
owns an interest in, land which is—

(a) a street in England and Wales or Northern Ireland,

(b) a road in Scotland, or

(c) 40tidal water or lands within the meaning of Part 9 of this
code.

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Part 3 Assignment of code rights, and upgrading and sharing of apparatus

Introductory

14 This Part of this code makes provision for—

(a) 5operators to assign agreements under Part 2,

(b) operators to upgrade electronic communications
apparatus to which such an agreement relates, and

(c) operators to share the use of any such electronic
communications apparatus.

10Assignment of code rights

15 (1) Any agreement under Part 2 of this code is void to the extent
that—

(a) it prevents or limits assignment of the agreement to
another operator, or

(b) 15it makes assignment of the agreement subject to conditions
to be met by the operator (including a condition requiring
the payment of money).

(2) In its application to England and Wales or Northern Ireland sub-
paragraph (1) does not apply to the following terms of an
20agreement under Part 2 of this code—

(a) terms in a lease which require the operator to enter into an
authorised guarantee agreement within the meaning of the
Landlord and Tenant (Covenants) Act 1995 (see sections 16
and 28 of that Act) or (in Northern Ireland) a similar
25agreement;

(b) terms in an agreement other than a lease which have a
similar effect to terms within paragraph (a).

(3) If an operator (“the assignor”) assigns an agreement under Part 2
of this code to another operator (“the assignee”), the assignee is
30from the date of the assignment bound by the terms of the
agreement.

(4) The assignor is not liable for any breach of a term of the agreement
that occurs after the assignment if (and only if), before the breach
took place, the assignor or the assignee gave a notice in writing to
35the other party to the agreement which—

(a) identified the assignee, and

(b) provided a contact address for the assignee.

(5) Sub-paragraph (4) is subject to the terms of any authorised
guarantee agreement or similar agreement entered into by the
40assignor as mentioned in sub-paragraph (2).

(6) In the application of this paragraph to Scotland references to
assignment of an agreement are to be read as references to
assignation of an agreement.

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(7) Nothing in the Landlord and Tenant Amendment (Ireland) Act
1860 applies in relation to an agreement under Part 2 of this code
so as to—

(a) prevent or limit assignment of the agreement to another
5operator, or

(b) relieve the assignor from liability for any breach of a term
of the agreement that occurs after the assignment.

Power for operator to upgrade or share apparatus

16 (1) An operator (“the main operator”) who has entered into an
10agreement under Part 2 of this code may, if the conditions in sub-
paragraphs (2) and (3) are met—

(a) upgrade the electronic communications apparatus to
which the agreement relates, or

(b) share the use of such electronic communications apparatus
15with another operator.

(2) The first condition is that any changes as a result of the upgrading
or sharing to the electronic communications apparatus to which
the agreement relates have no adverse impact, or no more than a
minimal adverse impact, on its appearance.

(3) 20The second condition is that the upgrading or sharing imposes no
additional burden on the other party to the agreement.

(4) For the purposes of sub-paragraph (3) an additional burden
includes anything that—

(a) has an additional adverse effect on the other party’s
25enjoyment of the land, or

(b) causes additional loss, damage or expense to that party.

(5) Any agreement under Part 2 of this code is void to the extent
that—

(a) it prevents or limits the upgrading or sharing, in a case
30where the conditions in sub-paragraphs (2) and (3) are met,
of the electronic communications apparatus to which the
agreement relates, or

(b) it makes upgrading or sharing of such apparatus subject to
conditions to be met by the operator (including a condition
35requiring the payment of money).

(6) References in this paragraph to sharing electronic
communications apparatus include carrying out works to the
apparatus to enable such sharing to take place.

Effect of agreements enabling sharing between operators and others

17 (1) 40This paragraph applies where—

(a) this code has been applied by a direction under section 106
in a person’s case,

(b) this code expressly or impliedly imposes a limitation on
the use to which electronic communications apparatus
45installed by that person may be put or on the purposes for
which it may be used, and

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(c) that person is a party to a relevant agreement or becomes a
party to an agreement which (after the person has become
a party to it) is a relevant agreement.

(2) The limitation does not preclude—

(a) 5the doing of anything in relation to that apparatus, or

(b) its use for particular purposes,

to the extent that the doing of that thing, or the use of the
apparatus for those purposes, is in pursuance of the relevant
agreement.

(3) 10This paragraph is not to be construed, in relation to a person who
is entitled or authorised by or under a relevant agreement to share
the use of apparatus installed by another party to the agreement,
as affecting any consent requirement imposed (whether by an
agreement, an enactment or otherwise) on that person.

(4) 15In this paragraph—

  • “consent requirement”, in relation to a person, means a
    requirement for the person to obtain consent or permission
    to or in connection with—

    (a)

    the installation by the person of apparatus, or

    (b)

    20the doing by the person of any other thing in relation
    to apparatus the use of which the person is entitled or
    authorised to share;

  • “relevant agreement” means an agreement in relation to
    electronic communications apparatus which—

    (a)

    25relates to the sharing by different parties to the
    agreement of the use of that apparatus, and

    (b)

    is an agreement that satisfies the requirements of sub-
    paragraph (5).

(5) An agreement satisfies the requirements of this sub-paragraph
30if—

(a) every party to the agreement is a person in whose case this
code applies by virtue of a direction under section 106, or

(b) one or more of the parties to the agreement is a person in
whose case this code so applies and every other party to
35the agreement is a qualifying person.

(6) A person is a qualifying person for the purposes of sub-paragraph
(5) if the person is either—

(a) a person who provides an electronic communications
network without being a person in whose case this code
40applies, or

(b) a designated provider of an electronic communications
service consisting in the distribution of a programme
service by means of an electronic communications
network.

(7) 45In sub-paragraph (6)

  • “designated” means designated by regulations made by the
    Secretary of State;

  • “programme service” has the same meaning as in the
    Broadcasting Act 1990.

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Part 4 Power of court to impose agreement

Introductory

18 This Part of this code makes provision about—

(a) 5the circumstances in which the court can impose an
agreement on a person by which the person confers or is
otherwise bound by a code right,

(b) the test to be applied by the court in deciding whether to
impose such an agreement,

(c) 10the effect of such an agreement and its terms,

(d) the imposition of an agreement on a person on an interim
or temporary basis.

When can the court impose an agreement?

19 (1) This paragraph applies where the operator requires a person (a
15“relevant person”) to agree—

(a) to confer a code right on the operator, or

(b) to be otherwise bound by a code right which is exercisable
by the operator.

(2) The operator may give the relevant person a notice in writing—

(a) 20setting out the code right, and all of the other terms of the
agreement that the operator seeks, and

(b) stating that the operator seeks the person’s agreement to
those terms.

(3) The operator may apply to the court for an order under this
25paragraph if—

(a) the relevant person does not, before the end of 28 days
beginning with the day on which the notice is given, agree
to confer or be otherwise bound by the code right, or

(b) at any time after the notice is given, the relevant person
30gives notice in writing to the operator that the person does
not agree to confer or be otherwise bound by the code
right.

(4) An order under this paragraph is one which imposes on the
operator and the relevant person an agreement between them
35which—

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

(b) provides for the code right to bind the relevant person.

What is the test to be applied by the court?

20 (1) Subject to sub-paragraph (5), the court may make an order under
40paragraph 19 if (and only if) the court thinks that both of the
following conditions are met.

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(2) The first condition is that the prejudice caused to the relevant
person by the order is capable of being adequately compensated
by money.

(3) The second condition is that the public benefit likely to result from
5the making of the order outweighs the prejudice to the relevant
person.

(4) In deciding whether the second condition is met, the court must
have regard to the public interest in access to a choice of high
quality electronic communications services.

(5) 10The court may not make an order under paragraph 19 if it thinks
that the relevant person intends to redevelop all or part of the land
to which the code right would relate, or any neighbouring land,
and could not reasonably do so if the order were made.

What is the effect of an agreement imposed under paragraph 19?

21 15An agreement imposed by an order under paragraph 19 takes
effect for all purposes of this code as an agreement under Part 2 of
this code between the operator and the relevant person.

What are the terms of an agreement imposed under paragraph 19?

22 (1) An order under paragraph 19 may impose an agreement which
20gives effect to the code right sought by the operator with such
modifications as the court thinks appropriate.

(2) An order under paragraph 19 must require the agreement to
contain such terms as the court thinks appropriate, subject to sub-
paragraphs (3) to (8).

(3) 25The terms of the agreement must include terms as to the payment
of consideration by the operator to the relevant person for the
relevant person’s agreement to confer or be bound by the code
right (as the case may be).

(4) Paragraph 23 makes provision about the determination of
30consideration under sub-paragraph (3).

(5) The terms of the agreement must include the terms the court
thinks appropriate for ensuring that the least possible loss and
damage is caused by the exercise of the code right to persons
who—

(a) 35occupy the land in question,

(b) own interests in that land, or

(c) are from time to time on that land.

(6) Sub-paragraph (5) applies in relation to a person regardless of
whether the person is a party to the agreement.

(7) 40The terms of the agreement must include terms specifying for how
long the code right conferred by the agreement is exercisable.

(8) The court must determine whether the terms of the agreement
should include a term—

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(a) permitting termination of the agreement (and, if so, in
what circumstances);

(b) enabling the relevant person to require the operator to
reposition or temporarily to remove the electronic
5communications equipment to which the agreement
relates (and, if so, in what circumstances).

How is consideration to be determined under paragraph 22?

23 (1) The amount of consideration payable by an operator to a relevant
person under an agreement imposed by an order under paragraph
1019 must be an amount or amounts representing the market value
of the relevant person’s agreement to confer or be bound by the
code right (as the case may be).

(2) For this purpose the market value of a person’s agreement to
confer or be bound by a code right is the amount that, at the date
15the market value is assessed, a willing buyer would pay a willing
seller for the agreement—

(a) in a transaction at arm’s length,

(b) on the basis that the buyer and seller were acting
prudently and with full knowledge of the transaction, and

(c) 20as if the transaction were subject to the other provisions of
the agreement imposed by the order under paragraph 19.

(3) The market value—

(a) must be assessed on the basis of the value of the right or
agreement to the relevant person, and

(b) 25must not be assessed on the basis of the value to the
operator of the right or agreement or having regard to the
use which the operator intends to make of the land in
question.

(4) The market value must be assessed on the assumption that—

(a) 30there is more than one site which the operator could use for
the purpose for which the operator intends to use the land
in question (whether or not that is actually the case), and

(b) paragraphs 15 and 16 (assignment of code rights and
upgrading and sharing of apparatus) do not apply to the
35code right or any electronic communications apparatus to
which the code right could apply.

(5) The terms of the agreement may provide for consideration to be
payable—

(a) as a lump sum or periodically,

(b) 40on the occurrence of a specified event or events, or

(c) in such other form or at such other time or times as the
court may direct.

What rights to the payment of compensation are there?

24 (1) If the court makes an order under paragraph 19 the court may also
45order the operator to pay compensation to the relevant person for
any loss or damage that has been sustained or will be sustained by

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that person as a result of the exercise of the code right to which the
order relates.

(2) An order under sub-paragraph (1) may be made—

(a) at the time the court makes an order under paragraph 19,
5or

(b) at any time afterwards, on the application of the relevant
person.

(3) An order under sub-paragraph (1) may—

(a) specify the amount of compensation to be paid by the
10operator, or

(b) give directions for the determination of any such amount.

(4) Directions under sub-paragraph (3)(b) may provide—

(a) for the amount of compensation to be agreed between the
operator and the relevant person;

(b) 15for any dispute about that amount to be determined by
arbitration.

(5) An order under this paragraph may provide for the operator—

(a) to make a lump sum payment,

(b) to make periodical payments,

(c) 20to make a payment or payments on the occurrence of an
event or events, or

(d) to make a payment or payments in such other form or at
such other time or times as the court may direct.

(6) Paragraph 84 makes further provision about compensation in the
25case of an order under paragraph 19.

Interim code rights

25 (1) An operator may apply to the court for an order which imposes on
the operator and a person, on an interim basis, an agreement
between them which—

(a) 30confers a code right on the operator, or

(b) provides for a code right to bind that person.

(2) An order under this paragraph imposes an agreement on the
operator and a person on an interim basis if it provides for them to
be bound by the agreement—

(a) 35for the period specified in the order, or

(b) until the occurrence of an event specified in the order.

(3) The court may make an order under this paragraph if (and only if)
the operator has given the person mentioned in sub-paragraph (1)
a notice which complies with paragraph 19(2) stating that an
40agreement is sought on an interim basis and—

(a) the operator and that person have agreed to the making of
the order and the terms of the agreement imposed by it, or

(b) the court thinks that there is a good arguable case that the
test in paragraph 20 for the making of an order under
45paragraph 19 is met.

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(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) 5paragraph 19(3) (time at which operator may apply for
agreement to be imposed);

(b) paragraph 21 (effect of agreement imposed under
paragraph 19);

(c) paragraph 22 (terms of agreement imposed under
10paragraph 19);

(d) paragraph 23 (payment of consideration);

(e) paragraph 24 (payment of compensation);

(f) paragraph 84 (compensation where agreement imposed).

(5) The court may make an order under this paragraph even though
15the 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 24 apply by virtue of sub-paragraph (4) as
if—

(a) 20references 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) 25Sub-paragraph (8) applies if—

(a) an order has been made under this paragraph imposing an
agreement relating to a code right on an operator and a
person in respect of any land, and

(b) the period specified under sub-paragraph (2)(a) has
30expired or, as the case may be, the event specified under
sub-paragraph (2)(b) has occurred without (in either case)
an agreement relating to the code right having been
imposed on the person by order under paragraph 19.

(8) From the time when the period expires or the event occurs, that
35person has the right, subject to and in accordance with Part 6 of
this code, to require the operator to remove any electronic
communications apparatus placed on the land under the
agreement imposed under this paragraph.

Temporary code rights

26 (1) 40This paragraph applies where—

(a) an operator gives a notice under paragraph 19(2) to a
person in respect of any land,

(b) the notice also requires that person’s agreement on a
temporary basis in respect of a right which is to be
45exercisable (in whole or in part) in relation to electronic
communications apparatus which is already installed on,
under or over the land, and