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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

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(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.

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(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

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    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.

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(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;

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(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 to the
exercise of the right in relation to the land has been given in
respect of that interest by the appropriate authority in accordance
15with paragraph 104.

(2) Where, in connection with an agreement between the operator
and the appropriate authority for the exercise of such a right, the
operator and the appropriate authority cannot agree the
consideration to be paid by the operator, the operator or the
20appropriate authority may apply to the appointed valuer for a
determination of the market value of the right.

(3) An application under sub-paragraph (2) must be made in writing
and must include—

(a) the proposed terms of the agreement, and

(b) 25the reasoned evidence of the operator and of the
appropriate authority as to the market value of the right.

(4) As soon as reasonably practicable after receiving such an
application, the appointed valuer must—

(a) determine the market value of the tidal water right; and

(b) 30notify the operator and the appropriate authority in
writing of its determination and the reasons for it.

(5) If the agreement mentioned in sub-paragraph (2) or an agreement
in substantially the same terms is concluded following a
determination under sub-paragraph (4), the consideration payable
35by the operator must not be more than the market value notified
under sub-paragraph (4)(b).

(6) For this purpose the market value of a tidal water right is the
amount that, at the date the market value is assessed, a willing
buyer would pay a willing seller for the right—

(a) 40in a transaction at arm’s length,

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

(c) on the basis that the transaction was subject to the
proposed terms set out in the application.

(7) 45The 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