Digital Economy Bill (HC Bill 87)

Digital Economy BillPage 130

Duty to attach notices to overhead apparatus

75 (1) This paragraph applies where—

(a) an operator has, for the purposes of the operator’s
network, installed any electronic communications
5apparatus, and

(b) the whole or part of the apparatus is at a height of three
metres or more above the ground.

(2) The operator must, before the end of the period of three days
beginning with the day after that on which the installation is
10completed, in a secure and durable manner attach a notice—

(a) to every major item of apparatus installed, or

(b) if no major item of apparatus is installed, to the nearest
major item of electronic communications apparatus to
which the apparatus that is installed is directly or
15indirectly connected.

(3) A notice attached under sub-paragraph (1) above—

(a) must be attached in a position where it is reasonably
legible, and

(b) must give the name of the operator and an address in the
20United Kingdom at which any notice of objection may be
given under paragraph 77(5) in respect of the apparatus in
question.

(4) Any person giving such a notice at that address in respect of that
apparatus is to be treated as having given that address for the
25purposes of paragraph 91(2).

(5) An operator who breaches the requirements of this paragraph is
guilty of an offence and liable on summary conviction to a fine not
exceeding level 2 on the standard scale.

(6) In any proceedings for an offence under this paragraph it is a
30defence for the person charged to prove that the person took all
reasonable steps and exercised all due diligence to avoid
committing the offence.

Part 12 Rights to object to certain apparatus

35Introductory

76 This Part of this code makes provision conferring rights to object
to certain kinds of apparatus, and makes provision about—

(a) the cases in which and persons by whom a right can be
exercised, and

(b) 40the power and procedures of the court if an objection is
made.

Digital Economy BillPage 131

When and by whom can a right to object be exercised?

77 (1) A right to object under this Part of this code is available where,
pursuant to the right in paragraph 62, an operator keeps electronic
communications apparatus installed on, under or over tidal water
5or lands within the meaning of Part 9 of this code.

(2) In that case a person has a right to object under this Part of this
code if the person—

(a) is an occupier of, or has an interest in, the tidal water or
lands,

(b) 10is not bound by a code right enabling the operator to keep
the apparatus installed on, under or over the tidal water or
lands, and

(c) is not a person with the benefit of a Crown interest in the
tidal water or lands.

(3) 15A right to object under this Part of this code is available where an
operator keeps a line installed over land pursuant to the right in
paragraph 74.

(4) In that case a person has a right to object under this Part of this
code if the person—

(a) 20is an occupier of, or has an interest in, the land, and

(b) is not bound by a code right enabling the operator to keep
the apparatus installed over the land.

(5) A right to object under this Part of this code is available where—

(a) electronic communications apparatus is kept on or over
25land for the purposes of an operator’s network, and

(b) the whole or any part of that apparatus is at a height of
three metres or more above the ground.

(6) In that case a person has a right to object under this Part of this
code if—

(a) 30the person is an occupier of, or has an interest in, any
neighbouring land, and

(b) because of the nearness of the neighbouring land to the
land on or over which the apparatus is kept—

(i) the enjoyment of the neighbouring land is capable
35of being prejudiced by the apparatus, or

(ii) any interest in that land is capable of being
prejudiced by the apparatus.

(7) There is no right to object under this Part of this code in respect of
electronic communications apparatus if the apparatus—

(a) 40replaces any electronic communications apparatus which
is not substantially different from the new apparatus, and

(b) is not in a significantly different position.

How may a right to object be exercised?

78 (1) A person with a right to object under this Part (“the objector”) may
45exercise the right by giving a notice to the operator.

Digital Economy BillPage 132

(2) The right to object that the person has, and the procedure that
applies to that right, depends on whether—

(a) the notice is given before the end of the period of 12
months beginning with the date on which installation of
5the apparatus was completed (see paragraph 79), or

(b) the notice is given after the end of that period (see
paragraph 80).

What is the procedure if the objection is made within 12 months of installation?

79 (1) This paragraph applies if the notice is given before the end of the
10period of 12 months beginning with the date on which installation
of the apparatus was completed.

(2) At any time after the end of the period of two months beginning
with the date on which the notice is given, but before the end of
the period of four months beginning with that date, the objector
15may apply to the court to have the objection upheld.

(3) The court must uphold the objection if the following conditions
are met.

(4) The first condition is that the apparatus appears materially to
prejudice the objector’s enjoyment of, or interest in, the land by
20reference to which the objection is made.

(5) The second condition is that the court is not satisfied that the only
possible alterations of the apparatus will—

(a) substantially increase the cost or diminish the quality of
the service provided by the operator’s network to persons
25who have, or may in future have, access to it,

(b) involve the operator in substantial additional expenditure
(disregarding any expenditure caused solely by the fact
that any proposed alteration was not adopted originally
or, as the case may be, that the apparatus has been
30unnecessarily installed), or

(c) give to any person a case at least as good as the objector has
to have an objection under this paragraph upheld.

(6) If the court upholds an objection under this paragraph it may by
order do any of the following—

(a) 35direct the alteration of the apparatus to which the objection
relates;

(b) authorise the installation (instead of the apparatus to
which the objection relates), in a manner and position
specified in the order, of any apparatus specified in the
40order;

(c) direct that no objection may be made under this paragraph
in respect of any apparatus the installation of which is
authorised by the court.

(7) Where an objector has both given a notice under paragraph 78 and
45applied for compensation under any of the other provisions of this
code—

(a) the court may give such directions as it thinks fit for
ensuring that no compensation is paid until any

Digital Economy BillPage 133

proceedings under this paragraph have been disposed of,
and

(b) if the court makes an order under this paragraph, it may
provide in that order for some or all of the compensation
5otherwise payable under this code to the objector not to be
so payable, or, if the case so requires, for some or all of any
compensation paid under this code to the objector to be
repaid to the operator.

(8) For the purposes of sub-paragraph (5)(c), the court has the power
10on an application under this paragraph to give the objector
directions for bringing the application to the notice of such other
interested persons as it thinks fit.

(9) This paragraph is subject to paragraph 81.

What is the procedure if the objection is made later than 12 months after installation?

80 (1) 15This paragraph applies if the notice is given after the end of the
period of 12 months beginning with the date on which installation
of the apparatus was completed.

(2) At any time after the end of the period of two months beginning
with the date on which the notice is given, but before the end of
20the period of four months beginning with that date, the objector
may apply to the court to have the objection upheld.

(3) The court may uphold the objection only if it is satisfied that—

(a) the alteration is necessary to enable the objector to carry
out a proposed improvement of the land by reference to
25which the objection is made, and

(b) the alteration will not substantially interfere with any
service which is or is likely to be provided using the
operator’s network.

(4) If the court upholds an objection under this paragraph it may by
30order direct the alteration of the apparatus to which the objection
relates.

(5) An order under this paragraph may provide for the alteration to
be carried out with such modifications, on such terms and subject
to such conditions as the court thinks fit.

(6) 35But the court must not include any such modifications, terms or
conditions in its order without the consent of the objector, and if
such consent is not given may refuse to make an order under this
paragraph.

(7) An order made under this paragraph must, unless the court
40otherwise thinks fit, require the objector to reimburse the operator
in respect of any expenses which the operator incurs in or in
connection with the execution of any works in compliance with
the order.

(8) This paragraph is subject to paragraph 81.

(9) 45In this paragraph “improvement” includes development and
change of use.

Digital Economy BillPage 134

What limitations are there on the court’s powers under paragraph 79 or 80?

81 (1) This paragraph applies where the court is considering making—

(a) an order under paragraph 79 directing the alteration of any
apparatus or authorising the installation of any apparatus,
5or

(b) an order under paragraph 80 directing the alteration of any
apparatus.

(2) The court must not make the order unless it is satisfied—

(a) that the operator has all such rights as it appears to the
10court appropriate that the operator should have for the
purpose of making the alteration or, as the case may be,
installing the apparatus, or

(b) that—

(i) the operator would have all those rights if the
15court, on an application under paragraph 19,
imposed an agreement on the operator and another
person, and

(ii) it would be appropriate for the court, on such an
application, to impose such an agreement.

(3) 20For the purposes of avoiding the need for the agreement of any
person to the alteration or installation of any apparatus, the court
has the same powers as it would have if an application had been
duly made under paragraph 19 above for an order imposing such
an agreement.

(4) 25For the purposes of this paragraph, the court has the power on an
application under paragraph 79 or 80 to give the objector
directions for bringing the application to the notice of such other
interested persons as it thinks fit.

Part 13 30Rights to lop trees

Rights to lop trees

82 (1) This paragraph applies where—

(a) a tree or other vegetation overhangs a street in England
and Wales or Northern Ireland or a road in Scotland, and

(b) 35the tree or vegetation—

(i) obstructs, or will or may obstruct, relevant
electronic communications apparatus, or

(ii) interferes with, or will or may interfere with, such
apparatus.

(2) 40In sub-paragraph (1) “relevant electronic communications
apparatus” means electronic communications apparatus which—

(a) is installed, or about to be installed, on land, and

(b) is used, or to be used, for the purposes of an operator’s
network.

Digital Economy BillPage 135

(3) The operator may, by notice to the occupier of the land on which
the tree or vegetation is growing, require the tree to be lopped or
the vegetation to be cut back to prevent the obstruction or
interference.

(4) 5If, within the period of 28 days beginning with the day on which
the notice is given, the occupier of the land on which the tree is
growing gives the operator a counter-notice objecting to the
lopping of the tree or cutting back of the vegetation, the notice has
effect only if confirmed by an order of the court.

(5) 10Sub-paragraph (6) applies if at any time a notice under sub-
paragraph (3) has not been complied with and—

(a) the period of 28 days beginning with the day on which the
notice was given has expired without a counter-notice
having been given, or

(b) 15an order of the court confirming the notice has come into
force.

(6) The operator may cause the tree to be lopped or the vegetation to
be cut back.

(7) Where the operator lops a tree or cuts back vegetation in exercise
20of the power in sub-paragraph (6) the operator must do so in a
husband-like manner and in such a way as to cause the minimum
damage to the tree or vegetation.

(8) Sub-paragraph (9) applies where—

(a) a notice under sub-paragraph (3) is complied with (either
25without a counter-notice having been given or after the
notice has been confirmed), or

(b) the operator exercises the power in sub-paragraph (6).

(9) The court must, on an application made by a person who has
sustained loss or damage in consequence of the lopping of the tree
30or cutting back of the vegetation or who has incurred expenses in
complying with the notice, order the operator to pay that person
such compensation in respect of the loss or damage as it thinks fit.

Part 14 Compensation under the code

35Introductory

83 This Part of this code makes provision about compensation under
this code.

Compensation where agreement imposed or apparatus removed

84 (1) This paragraph applies to the following powers of the court to
40order an operator to pay compensation to a person—

(a) the power in paragraph 24(1) (compensation where order
made imposing agreement on person);

(b) the power in paragraph 43(5) (compensation in relation to
removal of the apparatus from the land).

Digital Economy BillPage 136

(2) Depending on the circumstances, the power of the court to order
the payment of compensation for loss or damage includes power
to order payment for—

(a) expenses (including reasonable legal and valuation
5expenses, subject to the provisions of any enactment about
the powers of the court by whom the order for
compensation is made to award costs or, in Scotland,
expenses),

(b) diminution in the value of the land, and

(c) 10costs of reinstatement.

(3) For the purposes of assessing such compensation for diminution
in the value of land, the following provisions apply with any
necessary modifications as they apply for the purposes of
assessing compensation for the compulsory purchase of any
15interest in land—

(a) in relation to England and Wales, rules (2) to (4) set out in
section 5 of the Land Compensation Act 1961;

(b) in relation to Scotland, rules (2) to (4) set out in section 12
of the Land Compensation (Scotland) Act 1963;

(c) 20in relation to Northern Ireland, rules (2) to (4) set out in
Article 6(1) of the Land Compensation (Northern Ireland)
Order 1982 (SI 1982/712 (NI 9)SI 1982/712 (NI 9)).

(4) In the application of this paragraph to England and Wales, section
10(1) to (3) of the Land Compensation Act 1973 (compensation in
25respect of mortgages, trusts of land and settled land) applies in
relation to such compensation for diminution in the value of land
as it applies in relation to compensation under Part 1 of that Act.

(5) In the application of this paragraph to Scotland, section 10(1) and
(2) of the Land Compensation (Scotland) Act 1973 (compensation
30in respect of restricted interests in land) applies in relation to such
compensation for diminution in the value of land as it applies in
relation to compensation under Part 1 of that Act.

(6) In the application of this paragraph to Northern Ireland, Article
13(1) to (3) of the Land Acquisition and Compensation (Northern
35Ireland) Order 1973 (SI 1973/1896 (NI 21)SI 1973/1896 (NI 21)) (compensation in
respect of mortgages, trusts for sale and settlements) applies in
relation to such compensation for diminution in the value of land
as it applies in relation to compensation under Part II of that
Order.

(7) 40Where a person has a claim for compensation to which this
paragraph applies and a claim for compensation under any other
provision of this code in respect of the same loss, the
compensation payable to that person must not exceed the amount
of that person’s loss.

45Compensation for injurious affection to neighbouring land etc

85 (1) This paragraph applies where a right conferred by or in
accordance with any provision of Parts 2 to 9 of this code is
exercised by an operator.

Digital Economy BillPage 137

(2) In the application of this paragraph to England and Wales,
compensation is payable by the operator under section 10 of the
Compulsory Purchase Act 1965 (compensation for injurious
affection to neighbouring land) as if that section applied in relation
5to injury caused by the exercise of such a right as it applies in
relation to injury caused by the execution of works on land that
has been compulsorily acquired.

(3) In the application of this paragraph to Scotland, compensation is
payable by the operator under section 6 of the Railway Clauses
10Consolidation (Scotland) Act 1845 as if that section applied in
relation to injury caused by the exercise of such a right as it applies
in relation to injury caused by the execution of works on land that
has been taken or used for the purpose of a railway.

(4) Any question as to a person’s entitlement to compensation by
15virtue of sub-paragraph (3), or as to the amount of that
compensation, is, in default of agreement, to be determined by the
Lands Tribunal for Scotland.

(5) In the application of this paragraph to Northern Ireland,
compensation is payable by the operator under Article 18 of the
20Land Compensation (Northern Ireland) Order 1982 (SI 1982/712SI 1982/712
(NI 9)) as if that section applied in relation to injury caused by the
exercise of such a right as it applies in relation to injury caused by
the execution of works on land that has been compulsorily
acquired.

(6) 25Any question as to a person’s entitlement to compensation by
virtue of sub-paragraph (5), or as to the amount of that
compensation, is, in default of agreement, to be determined by the
Lands Tribunal for Northern Ireland.

(7) Compensation is payable on a claim for compensation under this
30paragraph only if the amount of the compensation exceeds £50.

(8) Compensation is payable to a person under this paragraph
irrespective of whether the person claiming the compensation has
any interest in the land in relation to which the right referred to in
sub-paragraph (1) is exercised.

(9) 35Compensation under this paragraph may include reasonable legal
and valuation expenses, subject to the provisions of any enactment
about the powers of the court or tribunal by whom an order for
compensation is made to award costs or, in Scotland, expenses.

No other compensation available

86 40Except as provided by any provision of Parts 2 to 13 of this code or
this Part, an operator is not liable to compensate any person for,
and is not subject to any other liability in respect of, any loss or
damage caused by the lawful exercise of any right conferred by or
in accordance with any provision of those Parts.

Digital Economy BillPage 138

Part 15 Notices under the code

Introductory

87 This Part makes provision—

(a) 5about requirements for the form of notices given under this
code by operators,

(b) about requirements for the form of notices given under this
code by persons other than operators, and

(c) about procedures for giving notices.

10Notices given by operators

88 (1) A notice given under this code by an operator must—

(a) explain the effect of the notice,

(b) explain which provisions of this code are relevant to the
notice, and

(c) 15explain the steps that may be taken by the recipient in
respect of the notice.

(2) If OFCOM have prescribed the form of a notice which may or must
be given by an operator under a provision of this code, a notice
given by an operator under that provision must be in that form.

(3) 20A notice which does not comply with this paragraph is not a valid
notice for the purposes of this code.

(4) Sub-paragraph (3) does not prevent the person to whom the notice
is given from relying on the notice if the person chooses to do so.

(5) In any proceedings under this code a certificate issued by OFCOM
25stating that a particular form of notice has been prescribed by
them as mentioned in this paragraph is conclusive evidence of that
fact.

Notices given by others

89 (1) Sub-paragraph (2) applies to a notice given under paragraph 30(1), 32(1), 38(1) or 39(2) by a person other than an operator.

(2) 30If OFCOM have prescribed the form of a notice given under the
provision in question by a person other than an operator, the
notice must be in that form.

(3) A notice which does not comply with sub-paragraph (2) is not a
valid notice for the purposes of this code.

(4) 35Sub-paragraph (3) does not prevent the operator to whom the
notice is given from relying on the notice if the operator chooses to
do so.

(5) Sub-paragraph (6) applies to a notice given under any other
provision of this code by a person other than an operator if—

(a) 40OFCOM have prescribed the form of a notice given under
that provision by a person other than an operator,

Digital Economy BillPage 139

(b) the notice is given in response to a notice given by an
operator, and

(c) the operator has, in giving the notice, drawn the person’s
attention to the form prescribed by OFCOM.

(6) 5The notice is a valid notice for the purposes of this code, but the
person giving the notice must bear any costs incurred by the
operator as a result of the notice not being in that form.

(7) In any proceedings under this code a certificate issued by OFCOM
stating that a particular form of notice has been prescribed by
10them as mentioned in this paragraph is conclusive evidence of that
fact.

Prescription of notices by OFCOM

90 (1) OFCOM must prescribe the form of a notice to be given under
each provision of this code that requires a notice to be given.

(2) 15OFCOM may from time to time amend or replace a form
prescribed under sub-paragraph (1).

(3) Before prescribing a form for the purposes of this code, OFCOM
must consult operators and such other persons as OFCOM think
appropriate.

(4) 20Sub-paragraph (3) does not apply to the amendment or
replacement of a form prescribed under sub-paragraph (1).

Procedures for giving notice

91 (1) A notice given under this code must not be sent by post unless it
is sent by a registered post service or by recorded delivery.

(2) 25For the purposes, in the case of a notice under this code, of section
394 of this Act (service of notifications and other documents) and
section 7 of the Interpretation Act 1978 (references to service by
post), the proper address of a person (“P”) is—

(a) if P has given the person giving the notice an address for
30service under this code, that address, and

(b) otherwise, the address given by section 394.

(3) Sub-paragraph (4) applies if it is not practicable, for the purposes
of giving a notice under this code, to find out after reasonable
enquiries the name and address of a person who is the occupier of
35land for the purposes of this code.

(4) A notice may be given under this code to the occupier —

(a) by addressing it to a person by the description of
“occupier” of the land (and describing the land), and

(b) by delivering it to a person who is on the land or, if there is
40no person on the land to whom it can be delivered, by
affixing it, or a copy of it, to a conspicuous object on the
land.