Digital Economy Bill (HC Bill 87)

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under paragraph 36 or 37, is exercisable only in accordance with
this paragraph.

(2) The landowner or occupier may give a notice to the operator
whose apparatus it is requiring the operator—

(a) 5to 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) comply with paragraph 89 (notices given by persons other
10than 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
reasonable one.

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

(a) that the operator will remove the apparatus;

(b) 20that 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
will be removed;

(d) 25the time at which or period within which the land will be
restored.

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

(a) an order under paragraph 43(1) (order requiring operator
30to remove apparatus etc), or

(b) an order under paragraph 43(3) (order enabling
landowner to sell apparatus etc).

(7) If the court makes an order under paragraph 43(1), but the
operator does not comply with the agreement imposed on the
35operator and the landowner or occupier by virtue of paragraph
43(7), the landowner or occupier may make an application to the
court for an order under paragraph 43(3).

(8) On an application under sub-paragraph (6) or (7) the court may
not make an order in relation to apparatus if an application under
40paragraph 19(3) has been made in relation to the apparatus and
has not been determined.

How are other rights to require removal of apparatus enforced?

40 (1) The right of a person (a “third party”) under an enactment other
than this code, or otherwise than under an enactment, to require
45the removal of electronic communications apparatus on, under or
over land is exercisable only in accordance with this paragraph.

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(2) The third party may give a notice to the operator whose apparatus
it is, 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 89 (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) Within the period of 28 days beginning with the day on which
notice under sub-paragraph (2) is given, the operator may give the
15third party notice (“counter-notice”)—

(a) stating that the third party is not entitled to require the
removal of the apparatus, or

(b) specifying the steps which the operator proposes to take
for the purpose of securing a right as against the third
20party to keep the apparatus on the land.

(6) If the operator does not give counter-notice within that period, the
third party is entitled to enforce the removal of the apparatus.

(7) If the operator gives the third party counter-notice within that
period, the third party may enforce the removal of the apparatus
25only in pursuance of an order of the court that the third party is
entitled to enforce the removal of the apparatus.

(8) If the counter-notice specifies steps under paragraph (5)(b), the
court may make an order under sub-paragraph (7) only if it is
satisfied—

(a) 30that the operator is not intending to take those steps or is
being unreasonably dilatory in taking them; or

(b) that taking those steps has not secured, or will not secure,
for the operator as against the third party any right to keep
the apparatus installed on, under or over the land or to re-
35install it if it is removed.

(9) Where the third party is entitled to enforce the removal of the
apparatus, under sub-paragraph (6) or under an order under sub-
paragraph (7), the third party may make an application to the
court for—

(a) 40an order under paragraph 43(1) (order requiring operator
to remove apparatus etc), or

(b) an order under paragraph 43(3) (order enabling third party
to sell apparatus etc).

(10) If the court makes an order under paragraph 43(1), but the
45operator does not comply with the agreement imposed on the
operator and the third party by virtue of paragraph 43(7), the third
party may make an application to the court for an order under
paragraph 43(3).

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(11) An order made on an application under this paragraph need not
include provision within paragraph 43(1)(b) or (3)(d) unless the
court thinks it appropriate.

(12) Sub-paragraph (9) is without prejudice to any other method
5available to the third party for enforcing the removal of the
apparatus.

How does paragraph 40 apply if a person is entitled to require apparatus to be altered
in consequence of street works?

41 (1) This paragraph applies where the third party’s right in relation to
10which paragraph 40 applies is a right to require the alteration of
the apparatus in consequence of the stopping up, closure, change
or diversion of a street or road or the extinguishment or alteration
of a public right of way.

(2) The removal of the apparatus in pursuance of paragraph 40
15constitutes compliance with a requirement to make any other
alteration.

(3) A counter-notice under paragraph 40(5) may state (in addition to,
or instead of, any of the matters mentioned in paragraph 40(5)(b))
that the operator requires the third party to reimburse the operator
20in respect of any expenses incurred by the operator in or in
connection with the making of any alteration in compliance with
the requirements of the third party.

(4) An order made under paragraph 40 on an application by the third
party in respect of a counter-notice containing a statement under
25sub-paragraph (3) must, unless the court otherwise thinks fit,
require the third party to reimburse the operator in respect of the
expenses referred to in the statement.

(5) Paragraph 43(3)(b) to (e) do not apply.

(6) In this paragraph—

  • 30“road” means a road in Scotland;

  • “street” means a street in England and Wales or Northern
    Ireland.”

When can a separate application for restoration of land be made?

42 (1) This paragraph applies if—

(a) 35the condition of the land has been affected by the exercise
of a code right, and

(b) restoration of the land to its condition before the code right
was exercised does not involve the removal of electronic
communications apparatus from any land.

(2) 40The occupier of the land, the owner of the freehold estate in the
land or the lessee of the land (“the relevant person”) has the right
to require the operator to restore the land if the relevant person is
not for the time being bound by the code right.

(3) The relevant person does not have that right if—

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

(i) conferred a code right (which is in force) entitling
the operator to affect the condition of the land in
the same way as the right mentioned in sub-
5paragraph (1), or

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

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

(4) In the application of sub-paragraph (3)(b) to Scotland the reference
10to a covenant enforceable by the relevant person is to be read as a
reference to a contractual term which is so enforceable.

(5) A person who has the right conferred by this paragraph may give
a notice to the operator requiring the operator to restore the land
to its condition before the code right was exercised.

(6) 15The notice must—

(a) comply with paragraph 89 (notices given by persons other
than operators), and

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

(7) 20The period specified under sub-paragraph (6) must be a
reasonable one.

(8) Sub-paragraph (9) 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
25following matters—

(a) that the operator will restore the land to its condition
before the code right was exercised;

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

(9) 30The landowner may make an application to the court for—

(a) an order under paragraph 43(2) (order requiring operator
to restore land), or

(b) an order under paragraph 43(4) (order enabling
landowner to recover cost of restoring land).

(10) 35If the court makes an order under paragraph 43(2), but the
operator does not comply with the agreement imposed on the
operator and the landowner by virtue of paragraph 43(7), the
landowner may make an application to the court for an order
under paragraph 43(4).

(11) 40In the application of sub-paragraph (2) to Scotland the reference to
a 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.

What orders may the court make on an application under paragraphs 39 to 42?

43 (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 operator
must, within the period specified in the order, restore the land to
5its condition before the code right was exercised.

(3) An order under this sub-paragraph is an order that the landowner,
occupier or third party may do any of the following—

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

(b) 10sell 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
15over the land;

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

(4) 20An order under this sub-paragraph is an order that the landowner
may recover from the operator the costs of restoring the land to its
condition before the code right was exercised.

(5) An order under this paragraph on an application under paragraph
39 may require the operator to pay compensation to the
25landowner 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 require the removal
of the apparatus from the land but was not able to exercise that
right.

(6) 30Paragraph 84 makes further provision about compensation under
sub-paragraph (5).

(7) An order under sub-paragraph (1) or (2) takes effect as an
agreement between the operator and the landowner, occupier or
third party that—

(a) 35requires the operator to take the steps specified in the
order, and

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

Part 7 Conferral of transport land rights and their exercise

40Introductory

44 This Part of this code makes provision about—

(a) the conferral of transport land rights, and

(b) the exercise of transport land rights.

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Transport land and transport undertakers

45 In this Part of this code—

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

    (a)

    5as 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
    10undertaking.

Conferral of transport land rights

46 (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
15code.

The transport land rights

47 (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) 20a 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) 25to 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
30under 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) 35A 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,
40in 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
45interfere with traffic on the railway, canal or tramway.

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

48 (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
5of 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) 10The 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 49.

(5) In this paragraph—

  • 15“non-emergency works” means any works which are not
    emergency works under paragraph 50;

  • “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?

49 (1) 20This paragraph applies if an operator gives a transport undertaker
notice of proposed works under paragraph 48.

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

(3) 25If 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 51 (“arbitration notice”).

(4) In a case where notice of objection is given, the operator may
30exercise 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) no arbitration notice has been given.

(6) 35In 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
beginning with the day on which objection notice is given;

(b) 40expressions defined in paragraph 48 have the same
meanings as in that paragraph.

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

50 (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
5emergency 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) 10contains 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
15the 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
20period, 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) The operator must pay the transport undertaker any
compensation which is required by a compensation notice (if
25given 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) But if—

(a) the compensation agreement period has ended, and

(b) 30the operator and the transport undertaker have not agreed
the 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
35paragraph 51.

(8) A 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 49 or 50 to carry them out.

(9) 40In this paragraph—

  • “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
    45beginning with the day on which an emergency works
    notice is given;

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  • “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)

    5the 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;

  • 10“notice of proposed works” means such notice given under
    paragraph 48.

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

51 (1) This paragraph applies if notice is given under paragraph 49(3) or
50(7) that the following matter (the “matter in dispute”) is to be
15referred to arbitration—

(a) an 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) 20by 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
arbitrator has the following powers—

(a) 25power 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
arbitrator any observations on such a plan or section in
30such 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
arbitrator thinks appropriate);

(d) 35power to make an award—

(i) requiring modifications to the proposed works,
and

(ii) specifying the terms on which, and the conditions
subject to which, the proposed works may be
40carried 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
person in consequence of the carrying out of the
45works;

(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—

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(a) power 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) 5power 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) The arbitrator may make an award conditional upon a party
complying with a requirement imposed under sub-paragraph
10(3)(a), (b) or (c) or (4)(a).

(6) In 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) 15The arbitrator’s power under sub-paragraph (3) or (4) to award
compensation 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
20determined on the basis of what would have been fair and
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) 25In this paragraph “party” means—

(a) the operator, or

(b) the transport undertaker.

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

52 (1) 30A 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
35interfere 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) 40The 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,
45within a reasonable time and to the reasonable satisfaction of the
transport undertaker, if—

(a) the notice period has ended, and