Digital Economy Bill (HC Bill 87)

Digital Economy BillPage 120

(b) no counter-notice has been given.

(4) If counter-notice has been given (within the notice period), the
transport undertaker may apply to the court for an order requiring
the operator to alter any of the specified apparatus.

(5) 5The court must not make an order unless it is satisfied that the
order is necessary on one of the grounds mentioned in sub-
paragraph (1).

(6) In determining whether to make an order, the matters to which the
court must also have regard include the public interest in there
10being access to a choice of high quality electronic communications
services.

(7) An order under this paragraph may take such form and be on such
terms as the court thinks fit.

(8) In particular, the order—

(a) 15may impose such conditions, and

(b) may contain such directions to the operator or the
transport undertaker,

as the court thinks necessary for resolving any difference between
the operator and the transport undertaker and for protecting their
20respective interests.

(9) In this paragraph—

  • “notice period” means the period of 28 days beginning with
    the day on which notice requiring alterations is given;

  • “specified apparatus” means the line or other electronic
    25communications apparatus specified in notice requiring
    alterations.

What happens to the transport land rights if land ceases to be transport land?

53 (1) This paragraph applies if an operator is exercising a transport land
right in relation to land immediately before a time when it ceases
30to be transport land.

(2) After that time, this Part of this code — except for paragraph 52
continues to apply to the land as if it were still transport land (and,
accordingly, the operator may continue to exercise any transport
land right in relation to the land as if it were still transport land).

(3) 35But sub-paragraph (2) is subject to sub-paragraphs (4) to (9).

(4) In the application of this Part of this code to land in accordance
with sub-paragraph (2), references to the transport undertaker
have effect as references to the occupier of the land.

(5) The application of this Part of this code to land in accordance with
40sub-paragraph (2) does not authorise the operator—

(a) to cross the land with any line that is not in place at the
time when the land ceases to be transport land, or

(b) to install and keep any line or other electronic
communications apparatus that is not in place at the time
45when the land ceases to be transport land.

Digital Economy BillPage 121

(6) But sub-paragraph (5) does not affect the power of the operator to
replace an existing line or other apparatus (whether in place at the
time when the land ceased to be transport land or a replacement
itself authorised by this sub-paragraph) with a new line or
5apparatus which—

(a) is not substantially different from the existing line or
apparatus, and

(b) is not in a significantly different position.

(7) The occupier of the land may, at any time after the land ceases to
10be transport land, give the operator notice specifying a date on
which this Part of this code is to cease to apply to the land in
accordance with this paragraph (“notice of termination”).

(8) That date specified in the notice of termination must fall after the
end of the period of 12 months beginning with the day on which
15the notice of termination is given.

(9) On the date specified in notice of termination in accordance with
sub-paragraph (8), the transport land rights cease to be exercisable
in relation to the land in accordance with this paragraph.

Offence: operators who do not comply with this Part of this code

54 (1) 20An operator is guilty of an offence if the operator starts any works
in contravention of any provision of paragraph 48, paragraph 49
or paragraph 50.

(2) An operator guilty of an offence under this paragraph is liable on
summary conviction to a fine not exceeding level 3 on the standard
25scale.

(3) In a case where this Part of this code applies in accordance with
paragraph 53, the reference in this paragraph to paragraph 48,
paragraph 49 or paragraph 50 is a reference to that paragraph as it
applies in accordance with paragraph 53.

30Part 8 Conferral of street work rights and their exercise

Introductory

55 This Part of this code makes provision about—

(a) the conferral of street work rights, and

(b) 35the exercise of street work rights.

Streets and roads

56 In this Part of this code—

  • “road” means—

    (a)

    a road in Scotland which is a public road;

    (b)

    40a road in Northern Ireland;

  • “street” means a street in England and Wales which is a
    maintainable highway (within the meaning of Part 3 of

    Digital Economy BillPage 122

    New Roads and Street Works Act 1991), other than one
    which is a footpath, bridleway or restricted byway that
    crosses, and forms part of, any agricultural land or any
    land which is being brought into use for agriculture.

5Conferral of street work rights

57 (1) An operator may exercise a street work right for the statutory
purposes.

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

10The street work rights

58 (1) For the purposes of this code a “street work right”, in relation to an
operator, is—

(a) a right to install and keep electronic communications
apparatus in, on, under, over, along or across a street or a
15road;

(b) a right to inspect, maintain, adjust, alter, repair, upgrade or
operate electronic communications apparatus which is
installed or kept by the exercise of the right under
paragraph (a);

(c) 20a right to carry out any works in, on, under, over, along or
across a street or road for or in connection with the exercise
of a right under paragraph (a) or (b);

(d) a right to enter any street or road to inspect, maintain,
adjust, alter, repair, upgrade or operate electronic
25communications apparatus which is installed or kept by
the exercise of the right under paragraph (a).

(2) The works that may be carried out under sub-paragraph (1)(c)
include—

(a) breaking up or opening a street or a road;

(b) 30tunnelling or boring under a street or a road;

(c) breaking up or opening a sewer, drain or tunnel.

What happens to the street work rights if land ceases to be a street or road?

59 (1) This paragraph applies if an operator is exercising a street work
right in relation to land immediately before a time when the land
35ceases to be a street or road.

(2) After that time, this Part of this code continues to apply to the land
as if it were still a street or road (and, accordingly, the operator
may continue to exercise any street work right in relation to the
land as if it were still a street or road).

(3) 40But sub-paragraph (2) is subject to sub-paragraphs (4) to (8).

(4) The application of this Part of this code to land in accordance with
sub-paragraph (2) does not authorise the operator to install or
keep any electronic communications apparatus that is not in place
at the time when the land ceases to be a street or road.

Digital Economy BillPage 123

(5) But sub-paragraph (4) does not affect the power of the operator to
replace existing apparatus (whether in place at the time when the
land ceased to be a street or road or a replacement itself authorised
by this sub-paragraph) with new apparatus which—

(a) 5is not substantially different from the existing apparatus,
and

(b) is not in a significantly different position.

(6) The occupier of land may, at any time after the land ceases to be a
street or road, give the operator notice specifying a date on which
10this Part of this code is to cease to apply to the land in accordance
with this paragraph (“notice of termination”).

(7) That date specified in the notice of termination must fall after the
end of the period of 12 months beginning with the day on which
the notice of termination is given.

(8) 15On the date specified in notice of termination in accordance with
sub-paragraph (7), the street work rights cease to be exercisable in
relation to the land in accordance with this paragraph.

Part 9 Conferral of tidal water rights and their exercise

20Introductory

60 This Part of this code makes provision about—

(a) the conferral of tidal water rights, and

(b) the exercise of tidal water rights.

Tidal water or lands

61 25In this Part of this code “tidal water or lands” includes—

(a) any estuary or branch of the sea,

(b) the shore below mean high water springs, and

(c) the bed of any tidal water.

Conferral of tidal water rights

62 (1) 30An operator may exercise a tidal water right for the statutory
purposes.

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

The tidal water rights

63 (1) 35For the purposes of this code a “tidal water right”, in relation to an
operator, is—

(a) a right to install and keep electronic communications
apparatus on, under or over tidal water or lands;

(b) a right to inspect, maintain, adjust, alter, repair, upgrade or
40operate electronic communications apparatus on, under or
over the tidal water or lands;

Digital Economy BillPage 124

(c) a right to carry out any works on, under or over any tidal
water or lands for or in connection with the exercise of a
right under paragraph (a) or (b);

(d) a right to enter any tidal water or lands to inspect,
5maintain, adjust, alter, repair, upgrade or operate
electronic communications apparatus which is installed or
kept by the exercise of the right under paragraph (a).

(2) The works that may be carried out under sub-paragraph (1)(c)
include placing a buoy or seamark.

10Exercise of tidal water right: Crown land

64 (1) An operator may not exercise a tidal water right in relation to land
in which a Crown interest subsists unless agreement has been
given to the exercise of the right in relation to the land, in
accordance with paragraph 104, in respect of that interest.

(2) 15If, under a term of such an agreement (the “relevant term”), the
amount of consideration payable in respect of a tidal water right
exceeds the market value of the right, the relevant term may only
be enforced so as to require payment of an amount of
consideration which is equal to that market value.

(3) 20For this purpose the market value of a tidal water right is the
amount that, at the date when the relevant term was agreed, a
willing buyer would have paid a willing seller for the
agreement—

(a) in a transaction at arm’s length, and

(b) 25on the basis that the buyer and seller were acting
prudently and with full knowledge of the transaction.

(4) The market value—

(a) must be assessed on the basis of the value of the tidal water
right to the holder of the Crown interest, and

(b) 30must not be assessed on the basis of the value to the
operator of the tidal water right or having regard to the use
which the operator intends to make of the tidal waters or
land in exercising that right.

(5) The market value must be assessed on the assumption that there
35is more than one site which the operator could use for the purpose
for which the operator intends to use the tidal waters or land in
question (whether or not that is actually the case).

Part 10 Undertaker’s works affecting electronic communications apparatus

40Introductory

65 This Part of this code makes provision about the carrying out of
undertaker’s works by undertakers or operators.

Digital Economy BillPage 125

Key definitions

66 (1) In this Part of this code—

  • “undertaker” means a person (including a local authority) of
    a description set out in any of the entries in the first column
    5of the following table;

  • “undertaker’s works”, in relation to an undertaker of a
    description set out in a particular entry in the first column
    of the table, means works of the description set out in the
    corresponding entry in the second column of the table.

“undertaker” 10“undertaker’s works”
A person authorised by any
enactment (whether public
general or local) or by any order or
scheme made under or confirmed
by any enactment to carry on any
railway, tramway, road transport,
water transport, canal, inland
navigation, dock, harbour, pier or
lighthouse undertaking
Works that the undertaker is
authorised to carry out for the
purposes of, or in connection with,
the undertaking which it carries
15on



A person (apart from the operator)
to whom this code is applied by a
direction under section 106 of the
Communications Act 2003
20Works that the undertaker is
authorised to carry out by or in
accordance with any provision of
this code
Any person to whom this Part of
this code is applied by any
enactment (whenever passed or
made)
Works for the purposes of which
25this paragraph is applied to the
undertaker

(2) In this Part of this code—

(a) a reference to undertaker’s works which interfere with a
30network is a reference to any undertaker’s works which
involve, or are likely to involve, an alteration of any
electronic communications apparatus kept on, under or
over any land for the purposes of an operator’s network;

(b) a reference to an alteration of any electronic
35communications apparatus is a reference to a temporary or
permanent alteration of the apparatus.

When can an undertaker carry out non-emergency undertaker’s works?

67 (1) Before carrying out non-emergency undertaker’s works which
interfere with a network, an undertaker must give the operator
40notice of the intention to carry out the works (“notice of proposed
works”).

(2) Notice of proposed works must specify—

(a) the nature of the proposed undertaker’s works,

(b) the alteration of the electronic communications apparatus
45which the works involve or are likely to involve, and

Digital Economy BillPage 126

(c) the time and place at which the works will begin.

(3) The undertaker must not begin the proposed undertaker’s works
(including the proposed alteration of electronic communications
apparatus) until the notice period has ended.

(4) 5But the undertaker’s power to alter electronic communications
apparatus (in carrying out the proposed undertaker’s works) is
subject to paragraph 68.

(5) In this paragraph—

  • “non-emergency undertaker’s works” means any
    10undertaker’s works which are not emergency works under
    paragraph 71;

  • “notice period” means the period of 10 days beginning with
    the day on which notice of proposed works is given.

What is the effect of the operator giving counter-notice to the undertaker?

68 (1) 15This paragraph applies if an undertaker gives an operator notice
of proposed works under paragraph 67.

(2) The operator may, within the notice period, give the undertaker
notice (“counter-notice”) stating either—

(a) that the operator requires the undertaker to make any
20alteration of the electronic communications apparatus that
is necessary or expedient because of the proposed
undertaker’s works—

(i) under the supervision of the operator, and

(ii) to the satisfaction of the operator; or

(b) 25that the operator intends to make any alteration of the
electronic communications apparatus that is necessary or
expedient because of the proposed undertaker’s works.

(3) In a case where counter-notice contains a statement under sub-
paragraph (2)(a), the undertaker must act in accordance with the
30counter-notice when altering electronic communications
apparatus (in carrying out the proposed undertaker’s works).

(4) But, if the operator unreasonably fails to provide the required
supervision, the undertaker must act in accordance with the
counter-notice only insofar as it requires alterations to be made to
35the satisfaction of the operator.

(5) In a case where counter-notice contains a statement under sub-
paragraph (2)(b) (operator intends to make alteration), the
undertaker must not alter electronic communications apparatus
(in carrying out the proposed undertaker’s works).

(6) 40But that does not prevent the undertaker from making any
alteration of electronic communications apparatus which the
operator fails to make within a reasonable time.

(7) Expressions defined in paragraph 67 have the same meanings in
this paragraph.

Digital Economy BillPage 127

What expenses must the undertaker pay?

69 (1) This paragraph applies if an undertaker carries out any non-
emergency undertaker’s works in accordance with paragraph 67
(including in a case where counter-notice is given under
5paragraph 68).

(2) The undertaker must pay the operator the amount of any loss or
damage sustained by the operator in consequence of any
alteration being made to electronic communications apparatus (in
carrying out the works).

(3) 10The undertaker must pay the operator any expenses incurred by
the operator in, or in connection with, supervising the undertaker
when altering electronic communications apparatus (in carrying
out the works).

(4) Any amount which is not paid in accordance with this paragraph
15is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

When can the operator alter apparatus in connection with non-emergency undertaker’s
works?

70 (1) An operator may make an alteration of electronic communications
20apparatus if—

(a) notice of proposed works has been given,

(b) the notice period has ended, and

(c) counter-notice has been given which states (in accordance
with paragraph 68(2)(b)) that the operator intends to make
25the alteration.

(2) If the operator makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection
with, making the alteration; and

(b) 30the amount of any loss or damage sustained by the
operator in consequence of the alteration being made.

(3) Any amount which is not paid in accordance with sub-paragraph
(2) is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

(4) 35Expressions defined in paragraph 67 have the same meanings in
this paragraph.

When can an undertaker carry out emergency undertaker’s works?

71 (1) An undertaker may, in carrying out emergency undertaker’s
works, make an alteration of any electronic communications
40apparatus kept on, under or over any land for the purposes of an
operator’s network.

(2) The undertaker must give the operator notice of the emergency
undertaker’s works as soon as practicable after beginning them.

Digital Economy BillPage 128

(3) This paragraph does not authorise the undertaker to make an
alteration of apparatus after any failure by the undertaker to give
notice in accordance with sub-paragraph (2).

(4) The undertaker must make the alteration to the satisfaction of the
5operator.

(5) If the undertaker makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection
with, supervising the undertaker when making the
10alteration; and

(b) the amount of any loss or damage sustained by the
operator in consequence of the alteration being made.

(6) Any amount which is not paid in accordance with sub-paragraph
(5) is to be recoverable by the operator from the undertaker in any
15court of competent jurisdiction.

(7) In this paragraph “emergency undertaker’s works” means
undertaker’s works carried out in order to stop anything already
occurring, or to prevent anything imminent from occurring, which
is likely to cause—

(a) 20danger to persons or property,

(b) interference with the exercise of any functions conferred or
imposed on the undertaker by or under any enactment, or

(c) substantial loss to the undertaker,

and any other works which it is reasonable (in all the
25circumstances) to carry out with those works.

Offence: undertakers who do not comply with this Part of this code

72 (1) An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

(a) makes an alteration of electronic communications
30apparatus in carrying out non-emergency undertaker’s
works, and

(b) does so—

(i) without notice of proposed works having been
given in accordance with paragraph 67, or

(ii) 35(in a case where such notice is given) before the end
of the notice period under paragraph 67.

(2) An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

(a) makes an alteration of electronic communications
40apparatus in carrying out non-emergency undertaker’s
works, and

(b) unreasonably fails to comply with any reasonable
requirement of the operator under this Part of this code
when doing so.

(3) 45An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

Digital Economy BillPage 129

(a) makes an alteration of electronic communications
apparatus in carrying out emergency undertaker’s works,
and

(b) does so without notice of emergency undertaker’s works
5having been given in accordance with paragraph 71.

(4) A person guilty of an offence under this paragraph is liable on
summary conviction to—

(a) a fine not exceeding level 4 on the standard scale, if the
service provided by the operator’s network is interrupted
10by the works or failure, or

(b) a fine not exceeding level 3 on the standard scale, if that
service is not interrupted.

(5) This paragraph does not apply to a Northern Ireland department.

Part 11 15Overhead apparatus

Introductory

73 This Part of this code—

(a) confers a power on operators to install and keep certain
overhead apparatus, and

(b) 20imposes a duty on operators to affix notices to certain
overhead apparatus.

Power to fly lines

74 (1) This paragraph applies where any electronic communications
apparatus is kept on or over any land for the purposes of an
25operator’s network.

(2) The operator has the right, for the statutory purposes, to install
and keep lines which—

(a) pass over other land adjacent to, or in the vicinity of, the
land on or over which the apparatus is kept,

(b) 30are connected to that apparatus, and

(c) are not, at any point where they pass over the other land,
less than three metres above the ground or within two
metres of any building over which they pass.

(3) Sub-paragraph (2) does not authorise the installation or keeping
35on or over any land of—

(a) any electronic communications apparatus used to support,
carry or suspend a line installed under sub-paragraph (2),
or

(b) any line which, as a result of its position, interferes with the
40carrying on of any business carried on on that land.

(4) In this paragraph “business” includes a trade, profession or
employment and includes any activity carried on by a body of
persons (whether corporate or unincorporate).