Digital Economy Bill (HC Bill 87)

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(c) the person has the right to require the removal of the
apparatus in accordance with paragraph 36 or as
mentioned in paragraph 40(1) but the operator is not for
the time being required to remove the apparatus.

(2) 5The court may, on the application of the operator, impose on the
operator and the person an agreement between them which
confers on the operator, or provides for the person to be bound by,
such temporary code rights as appear to the court reasonably
necessary for securing the objective in sub-paragraph (3).

(3) 10That objective is that, until the proceedings under paragraph 19
and any proceedings under paragraph 39 are determined, the
service provided by the operator’s network is maintained and the
apparatus is properly adjusted and kept in repair.

(4) Subject to sub-paragraphs (5) and (6), the following provisions
15apply 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) paragraph 19(3) (time at which operator may apply for
agreement to be imposed);

(b) 20paragraph 21 (effect of agreement imposed under
paragraph 19);

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

(d) paragraph 23 (payment of consideration);

(e) 25paragraph 24 (payment of compensation);

(f) paragraph 84 (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
30order should be made as a matter of urgency.

(6) Paragraphs 22, 23 and 24 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) 35the 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 where, in the course of the proceedings
under paragraph 19, it is shown that a person with an interest in
40the 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
whether the apparatus should continue to be kept on, under or
over the land, disregard the fact that the apparatus has already
45been installed there.

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Part 5 Termination and modification of agreements

Introductory

27 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

28 (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

29 (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—

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(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 25 (interim code rights) or 26 (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?

30 (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 89 (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 29, 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 30?

31 (1) Where a site provider gives a notice under paragraph 30, the code
45agreement to which it relates comes to an end in accordance with
the notice unless—

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(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 33.

(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 30, 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 33.

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

32 (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—

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(a) comply with paragraph 88 or 89, according to whether the
notice is given by an operator or a site provider,

(b) specify—

(i) the day from which it is proposed that the modified
5terms should have effect,

(ii) the day from which the agreement should no
longer provide for the code right to be conferred by
or otherwise bind the site provider,

(iii) the day from which it is proposed that the
10additional code right should be conferred by or
otherwise bind the site provider, or

(iv) the day on which it is proposed the existing code
agreement should be terminated and from which a
new agreement should have effect,

15(as the case may be), and

(c) set out details of—

(i) the proposed modified terms,

(ii) the code right it is proposed should no longer be
conferred by or otherwise bind the site provider,

(iii) 20the proposed additional code right, or

(iv) the proposed terms of the new agreement,

(as the case may be).

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

(a) after the end of the period of 6 months beginning with the
25day on which the notice is given, and

(b) after the time at which, apart from paragraph 29, the code
right to which the existing code agreement relates would
have ceased to be exercisable or to bind the site provider or
at a time when, apart from that paragraph, the code
30agreement could have been brought to an end by the site
provider.

(4) Sub-paragraph (5) applies if, after the end of the period of 6
months beginning with the day on which the notice is given, the
operator and the site provider have not reached agreement on the
35proposals in the notice.

(5) Where this paragraph applies, the operator or the site provider
may apply to the court for the court to make an order under
paragraph 33.

What orders may a court make on an application under paragraph 31 or 32?

33 (1) 40This paragraph sets out the orders that the court may make on an
application under paragraph 31(1)(b) or 32(5).

(2) The court may order that the operator may continue to exercise the
existing code right in accordance with the existing code agreement
for such period as may be specified in the order (so that the code
45agreement has effect accordingly).

(3) The court may order the modification of the terms of the code
agreement relating to the existing code right.

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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 84 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 has the right to require the
removal of electronic communications apparatus or the
restoration of land,

(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 of
apparatus or restoration of land can be enforced.

When does a landowner 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 since the
15coming into force of this code been bound by a 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), or

(d) where the right was granted by a lease to which Part

255

of
this code does not apply.

This is subject to sub-paragraph (4).

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

(a) 30the 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) 35that 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
reference to a contractual term which is so enforceable.

(6) 40The 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) the apparatus is not, or is no longer, used for the purposes
45of 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 53(9) or 59(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.

(9) This paragraph does not affect rights to require the removal of
apparatus under another enactment (see paragraph 40).

20When does a landowner or occupier of neighbouring land have the right to require
removal of electronic communications apparatus?

37 (1) A landowner or occupier of any land (“neighbouring land”) has
the right to require the removal of electronic communications
apparatus on, under or over other land if both of the following
25conditions are met.

(2) The first condition is that the exercise by an operator in relation to
the apparatus of a right mentioned in paragraph 13(1) interferes
with or obstructs a means of access to or from the neighbouring
land.

(3) 30The second condition is that the landowner or occupier of the
neighbouring land is not bound by a code right within paragraph
3(h) entitling an operator to cause the interference or obstruction.

(4) A landowner of neighbouring land who is not the occupier of the
land does not meet the second condition if—

(a) 35the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling
an operator to cause the interference or obstruction,
or

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

(b) 40that 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
reference to a contractual term which is so enforceable.

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How does a landowner or occupier 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) 5the 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
10operator to keep electronic communications apparatus on,
under or over land in which the landowner has an interest.

(2) A landowner or occupier of neighbouring land may by notice
require an operator to disclose whether—

(a) the operator owns electronic communications apparatus
15on, under or over land that forms (or, but for the
apparatus, would form) a means of access to the
neighbouring land, 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
20operator to keep electronic communications apparatus on,
under or over land that forms (or, but for the apparatus,
would form) a means of access to the neighbouring land.

(3) The notice must comply with paragraph 89 (notices given by
persons other than operators).

(4) 25Sub-paragraph (5) 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) or (2) was given, give a notice to the
landowner or occupier that—

(i) 30complies with paragraph 88 (notices given by
operators), and

(ii) discloses the information sought by the landowner
or occupier,

(b) the landowner or occupier takes action under paragraph
3539 to enforce the removal of the apparatus, and

(c) it 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
40the operator to keep the apparatus on, under or
over the land.

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

45How does a landowner or occupier enforce removal of apparatus?

39 (1) The right of a landowner or occupier to require the removal of
electronic communications apparatus on, under or over land,