Telecommunications Infrastructure (Leasehold Property) Bill (HC Bill 89)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Amend the electronic communications code set out in Schedule 3A to the Communications
Act 2003; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

1 Code rights in respect of land connected to leased premises

After Part 4 of Schedule 3A to the Communications Act 2003 (the electronic
communications code) insert—

“Part 4A 5Code rights in respect of land connected to leased premises:
unresponsive occupiers

27A Introductory

This Part of this code makes provision for the court to make an order
imposing an agreement which provides that code rights are
10exercisable by an operator for the purpose of providing an electronic
communications service to leased premises where—

(a) the rights are required in respect of land which is connected
to the leased premises, and

(b) the occupier or another person with an interest in the land
15has not responded to repeated notices given by the operator
seeking agreement to confer or otherwise be bound by the
rights.

27B Circumstances in which an application for an order under this Part can be made

(1) Paragraphs 27C and 27D apply where—

Telecommunications Infrastructure (Leasehold Property) BillPage 2

(a) premises within the scope of this Part are occupied under a
lease (“the target premises”),

(b) the lessee in occupation requests an operator to provide an
electronic communications service to the target premises,

(c) 5in order to fulfil that request, the operator requires a person
(the “required grantor”) to agree—

(i)(i) to confer on the operator a code right in respect of
connected land, or

(ii) otherwise to be bound by such a code right
10exercisable by the operator,

(d) the operator has, on or after the day on which section 1 of the
Telecommunications Infrastructure (Leasehold Property) Act
2020 comes fully into force, given the required grantor a
notice in accordance with paragraph 20(2) of this code
15seeking that agreement (the “request notice”), and

(e) the required grantor has not responded to the operator.

(2) Premises are within the scope of this Part if they—

(a) form part of a multiple dwelling building (see paragraph
27I(1)), or

(b) 20are other premises of a description specified in regulations
made by the Secretary of State.

(3) In this Part “connected land”, in relation to the target premises,
means land which—

(a) is in common ownership with the target premises (see
25paragraph 27I(2)), and

(b) is held or used for access to, or otherwise in connection with,
the target premises.

(4) For the purposes of this paragraph, the required grantor responds to
the operator if the required grantor—

(a) 30agrees or refuses, in writing, to confer or otherwise be bound
by the code right specified in the request notice on the terms
that the operator seeks, or

(b) otherwise acknowledges the request notice in writing.

27C Requirements to be met before applying for an order under this Part

(1) 35Before applying to the court for an order under this Part (a “Part 4A
order”) (see paragraph 27E(2)) the operator must, in accordance with
this paragraph, give the required grantor—

(a) two warning notices, and

(b) a final notice.

(2) 40A “warning notice” is a notice in writing which—

(a) includes a copy of the request notice,

(b) states that it is the first or (as the case may be) second of three
notices that, unless the required grantor responds to the
operator, will allow the operator to apply for a Part 4A order,
45and

(c) explains the effect of a Part 4A order.

Telecommunications Infrastructure (Leasehold Property) BillPage 3

(3) The first warning notice may only be given after the end of the period
of seven days beginning with the day on which the request notice
was given.

(4) The second warning notice may only be given after the end of the
5period of seven days beginning with the day on which the first one
was given.

(5) A “final notice” is a notice in writing which—

(a) includes a copy of the request notice,

(b) states that unless the required grantor responds to the
10operator before the end of the period of 14 days beginning
with the day on which the final notice is given, the operator
intends to apply for a Part 4A order, and

(c) explains the effect of a Part 4A order.

(6) A final notice may only be given within the permitted period.

(7) 15The “permitted period” means the period which—

(a) begins immediately after the end of whichever of the
following ends last—

(i) the period of seven days beginning with the day on
which the second warning notice was given;

(ii) 20the period of 28 days beginning with the day on
which the request notice was given, and

(b) ends at the end of the period of 28 days beginning with the
day on which the second warning notice was given.

(8) The Secretary of State may by regulations specify other conditions
25that the operator must satisfy before giving the required grantor a
final notice.

(1) The operator may apply to the court for a Part 4A order in relation to
the code right specified in the request notice if—

(a) the operator has satisfied the notice requirements set out in
30paragraph 27C,

(b) the period of 14 days beginning with the day on which the
final notice was given has ended,

(c) the required grantor has not responded to the operator, and

(d) the operator has satisfied any other specified conditions.

(2) 35An application for a Part 4A order may not be made after the end of
the specified period beginning with the day on which the final notice
is given.

(3) The operator must give the required grantor notice of an application
for a Part 4A order.

(4) 40For the purposes of this paragraph, the required grantor responds to
the operator if the required grantor—

(a) agrees or refuses, in writing, to confer or otherwise be bound
by the code right specified in the request notice on the terms
that the operator seeks, or

(b) 45otherwise acknowledges, in writing, the request notice, a
warning notice or the final notice.

Telecommunications Infrastructure (Leasehold Property) BillPage 4

(5) In this paragraph “specified” means specified in regulations made by
the Secretary of State.

27E When a Part 4A order can be made and its effect

(1) The court may make a Part 4A order if (and only if)—

(a) 5it is satisfied that the requirements for applying for the order
have been met, and

(b) the required grantor has not objected to the making of the
order.

(2) A Part 4A order is an order which imposes on the operator and the
10required grantor an agreement between them—

(a) by which the required grantor confers on the operator the
code right identified in the request notice in respect of the
connected land so identified, or

(b) which provides for the code right identified in that notice,
15which is exercisable by the operator in respect of the
connected land so identified, otherwise to bind the required
grantor.

(3) In this code, a “Part 4A code right” means a code right which is
conferred by or otherwise binds the required grantor pursuant to an
20agreement imposed by a Part 4A order.

(4) The terms of an agreement imposed by a Part 4A order are to be
those specified in regulations made by the Secretary of State.

(5) Regulations under sub-paragraph (4) must, in particular, provide for
an agreement to include terms—

(a) 25relating to the provision by the operator to the required
grantor of details of the works to be carried out in the exercise
of the Part 4A code right (“the works”);

(b) relating to the obtaining by the operator of any consent,
permit, licence, permission, authorisation or approval which
30is necessary for the works to be carried out;

(c) relating to the giving of notice by the operator to the required
grantor or other specified persons before entering on the
connected land in the exercise of the Part 4A code right or
carrying out the works;

(d) 35restricting the operator’s right to enter on the connected land
to specified times, except in cases of emergency;

(e) as to the manner in which the works are to be carried out by
the operator;

(f) relating to the restoration by the operator of the connected
40land at the end of the works, to the reasonable satisfaction of
the required grantor;

(g) relating to the need for insurance cover or indemnification of
the required grantor;

(h) relating to the maintenance or upgrading by the operator of
45apparatus installed on, under or over the connected land in
the exercise of the Part 4A code right (“the apparatus”);

(i) imposing requirements or restrictions on the required
grantor for the purposes of—

Telecommunications Infrastructure (Leasehold Property) BillPage 5

(i) preventing damage to the apparatus,

(ii) facilitating access to the apparatus for the operator, or

(iii) otherwise preventing or minimising disruption to the
operation of the apparatus;

(j) 5relating to assignment of the agreement.

(6) Before making regulations under sub-paragraph (4), the Secretary of
State must consult—

(a) operators,

(b) persons appearing to the Secretary of State to represent
10owners of interests in land who are likely to be affected by the
regulations, and

(c) any other persons the Secretary of State thinks appropriate.

(7) In sub-paragraph (5), “specified” mean specified, or of a description
specified, in the regulations.

27F 15Exercise of Part 4A code rights

(1) A Part 4A code right may be exercised by the operator in respect of
the connected land for the provision of an electronic communications
service to—

(a) the target premises, and

(b) 20other premises, but only if the provision of the service to the
other premises in addition to the target premises imposes no
additional burden on the required grantor.

(2) For the purposes of sub-paragraph (1)(b) an additional burden
includes anything that—

(a) 25has an additional adverse effect on the required grantor’s
enjoyment of the connected land, or

(b) causes additional loss, damage or expense to the required
grantor.

27G Expiry of Part 4A code rights

(1) 30A Part 4A code right ceases to be conferred on the operator by, or
otherwise to bind, the required grantor—

(a) if a replacement agreement comes into effect, in accordance
with that agreement,

(b) if the court decides to refuse an application by the operator
35for the imposition of a replacement agreement, in accordance
with that decision, or

(c) if the right has not ceased to have that effect as mentioned in
paragraph (a) or (b) before the end of the specified period
beginning with the day on which the agreement imposed by
40the Part 4A order comes into effect, at the end of that period.

(2) In sub-paragraph (1) a “replacement agreement”, in relation to a Part
4A code right, means an agreement under Part 2 by which the
required grantor confers a code right on the operator, or otherwise
agrees to be bound by a code right which is exercisable by the
45operator, where that right is in respect of the same land as the Part
4A code right.

Telecommunications Infrastructure (Leasehold Property) BillPage 6

(3) In sub-paragraph (1)(c) “specified period” means the period, of no
more than 18 months, specified in regulations made by the Secretary
of State.

(4) The required grantor has the right, subject to and in accordance with
5Part 6 of this code, to require the operator to remove any electronic
communications apparatus placed on the connected land in the
exercise of a Part 4A code right which has ceased to have effect, or
otherwise to bind, the required grantor.

27H Compensation

(1) 10This paragraph applies where the court has made a Part 4A order.

(2) The court may, on the application of the required grantor, order the
operator to pay compensation to the required grantor for any loss or
damage that has been sustained or will be sustained by the required
grantor as a result of the exercise by the operator of the Part 4A code
15right.

(3) An application for an order under this paragraph may be made at
any time after the Part 4A order is made (including at a time when
the Part 4A code right has ceased to be conferred on the operator by,
or otherwise to bind, the required grantor).

(4) 20An order under this paragraph may—

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

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

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

(a) 25for the amount of compensation to be agreed between the
operator and the required grantor;

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

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

(a) 30to make a lump sum payment,

(b) to make periodical payments,

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

(d) to make a payment or payments in such other form or at such
35other time or times as the court may direct.

(7) Paragraph 84 makes further provision about compensation in the
case of a Part 4A order.

27I Interpretation of this Part

(1) In this Part—

  • 40“connected land” has the meaning given by paragraph 27B(3);

  • “multiple dwelling building” means a building which contains
    two or more sets of premises which are used as, or intended
    to be used as, a separate dwelling;

  • “Part 4A order” has the meaning given by paragraph 27C(1);

  • Telecommunications Infrastructure (Leasehold Property) BillPage 7

  • “premises” includes a part of premises;

  • “request notice” has the meaning given by paragraph 27B(1)(d);

  • “required grantor” has the meaning given by paragraph
    27B(1)(c);

  • 5“target premises” has the meaning given by paragraph
    27B(1)(a).

(2) For the purposes of this Part, land is in “common ownership” with
the target premises if a person with a relevant interest in the land also
has a relevant interest (whether or not of the same sort) in the target
10premises.

(3) For the purposes of sub-paragraph (2), a person has a “relevant
interest” in land if—

(a) the person owns the freehold estate in the land (or, in relation
to Scotland, is the owner of the land), or

(b) 15the person is the lessee of the land.”

2 Related amendments

The Schedule contains related amendments.

3 Extent, commencement and short title

(1) Subject to subsection (2), this Act extends to England and Wales, Scotland and
20Northern Ireland.

(2) The amendments made by paragraphs 4 to 7 of the Schedule extend to England
and Wales and Scotland.

(3) The following provisions come into force on the day on which this Act is
passed—

(a) 25this section;

(b) any other provision of this Act so far as necessary for enabling the
exercise, on or after that day, of any power to make regulations under
Part 4A of Schedule 3A to the Communications Act 2003 (as inserted by
section 1).

(4) 30The other provisions of this Act come into force on such day as the Secretary of
State may by regulations appoint.

(5) Different days may be appointed for different purposes.

(6) The Secretary of State may by regulations make transitional provision in
connection with the coming into force of any provision of this Act.

(7) 35Regulations under this section are to be made by statutory instrument.

(8) This Act may be cited as the Telecommunications Infrastructure (Leasehold
Property) Act 2020.

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Section 2

Schedule Related amendments

Communications Act 2003

1 The Communications Act 2003 is amended as follows.

2 5In section 402 (orders and regulations)—

(a) in subsection (2), for paragraph (aa) substitute—

(aa) regulations within subsection (2A),”;

(b) in subsection (2A)—

(i) for “regulations under paragraph 95 of Schedule 3A which
10amend, repeal or modify the application of primary
legislation,” substitute “any of the following”;

(ii) at the end insert

(a) regulations under paragraph 27E(F) of
Schedule 3A;

(b) 15regulations under paragraph 95 of Schedule
3A which amend, repeal or modify the
application of primary legislation.”

3 (1) Schedule 3A (the electronic communications code) is amended as follows.

(2) In paragraph 10—

(a) 20in sub-paragraph (1), for “in accordance with this Part” substitute
“pursuant to an agreement under this Part or Part 4A”;

(b) in sub-paragraph (4), after “who has” insert “, pursuant to an
agreement under this Part or Part 4A,”.

(3) In paragraph 12(2), after “Part” insert “or Part 4A”.

(4) 25In paragraph 19(a)—

(a) for “the circumstances” substitute “certain circumstances”;

(b) at the end insert “(see also Part 4A)”.

(5) In paragraph 20(2)(a), after “code right,” insert “the land to which it relates”.

(6) In paragraph 23, after sub-paragraph (2) insert—

(2A) 30In determining the terms of the agreement the court may take into
account, among other things, any breach by the operator of an
agreement between the operator and the relevant person which
was imposed by an order under Part 4A (whether or not in force).”

(7) In paragraph 26—

(a) 35after sub-paragraph (1) insert—

(1A) But an operator may not make an application under this
paragraph if there is a relevant Part 4A agreement in effect
between the operator and the person.

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(1B) In sub-paragraph (1A) “relevant Part 4A agreement”
means an agreement imposed by an order under Part 4A
by which the person—

(a) confers a Part 4A code right on the operator, or

(b) 5otherwise agrees to be bound by a Part 4A code
right which is exercisable by the operator,

where the Part 4A code right is in respect of the same land
as the code right mentioned in sub-paragraph (1).”;

(b) in sub-paragraph (6), in the words before paragraph (a), after
10“Paragraphs” insert “20(3), 22,”.

(8) In paragraph 27(6), in the words before paragraph (a), after “Paragraphs”
insert “20(3), 22,”.

(9) In paragraph 37(3), after paragraph (a) insert—

(aa) as mentioned in paragraph 27G(1) and (4) ;”.

(10) 15In paragraph 84(1), after paragraph (a) insert—

(aa) the power in paragraph 27H(2) (compensation where Part
4A order made);”.

(11) In paragraph 95(1), after paragraph (a) insert—

(aa) in relation to Wales, the First-tier Tribunal, but only in
20connection with proceedings under Part 4A;”.

(12) In paragraph 108(1), after the definition of “lease” insert—

  • ““Part 4A code right” has the meaning given by paragraph
    27E(3);”.

Electronic Communications Code (Jurisdiction) Regulations 2017 (S.I. 2017/1284S.I. 2017/1284)

4 25The Electronic Communications Code (Jurisdiction) Regulations 2017 are
amended as follows.

5 In regulation 2(1) (interpretation), after the definition of “the code” insert—

  • ““Part 4A proceedings” means proceedings under Part 4A of the
    code;”.

6 (1) 30Regulation 3 (conferral of jurisdiction on tribunals) is amended as follows.

(2) The existing text becomes paragraph (1).

(3) In that paragraph—

(a) in the words before sub-paragraph (a), after “Subject to” insert
“paragraph (2) and”;

(b) 35for sub-paragraphs (a) and (b) (including the final “and”)
substitute—

(aa) in relation to England and Wales, the First-tier
Tribunal and the Upper Tribunal, and”;

(c) omit the words after sub-paragraph (c).

(4) 40After that paragraph insert—

(2) Functions are exercisable by the First-tier Tribunal under paragraph
(1)(aa) only—