Digital Economy Bill (HL Bill 80)

Digital Economy BillPage 130

(b) must 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.

(8) 5The market value must be assessed on the assumption that there
is 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).

(9) The appointed valuer may charge a fee in respect of the
10consideration of an application under sub-paragraph (4) and may
apportion the fee between the operator and the appropriate
authority as the appointed valuer considers appropriate.

(10) In this paragraph “the appointed valuer” means—

(a) such person as the operator and the appropriate authority
15may agree;

(b) if no person is agreed, such person as may be nominated,
on the application of the operator or the appropriate
authority, by the President of the Royal Institution of
Chartered Surveyors.”

20Part 10 Undertaker’s works affecting electronic communications apparatus

Introductory

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

25Key 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
    of the following table;

  • 30“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” “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
35Works that the undertaker is
authorised to carry out for the
purposes of, or in connection with,
the undertaking which it carries
on
40


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“undertaker” “undertaker’s works”
A person (apart from the operator)
to whom this code is applied by a
direction under section 106 of the
Communications Act 2003
Works that the undertaker is
authorised to carry out by or in
accordance with any provision of
5this 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
this paragraph is applied to the
undertaker

(2) 10In this Part of this code—

(a) a reference to undertaker’s works which interfere with a
network 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
15over any land for the purposes of an operator’s network;

(b) a reference to an alteration of any electronic
communications 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) 20Before carrying out non-emergency undertaker’s works which
interfere with a network, an undertaker must give the operator
notice of the intention to carry out the works (“notice of proposed
works”).

(2) Notice of proposed works must specify—

(a) 25the nature of the proposed undertaker’s works,

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

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

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

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

(5) 35In this paragraph—

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

  • “notice period” means the period of 10 days beginning with
    40the day on which notice of proposed works is given.

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

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

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(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
alteration of the electronic communications apparatus that
5is 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) that the operator intends to make any alteration of the
10electronic 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
counter-notice when altering electronic communications
15apparatus (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
the satisfaction of the operator.

(5) 20In 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) But that does not prevent the undertaker from making any
25alteration 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.

What expenses must the undertaker pay?

69 (1) 30This 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
paragraph 68).

(2) The undertaker must pay the operator the amount of any loss or
35damage sustained by the operator in consequence of any
alteration being made to electronic communications apparatus (in
carrying out the works).

(3) The undertaker must pay the operator any expenses incurred by
the operator in, or in connection with, supervising the undertaker
40when altering electronic communications apparatus (in carrying
out the works).

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

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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
apparatus if—

(a) 5notice 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
the alteration.

(2) 10If 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) the amount of any loss or damage sustained by the
15operator 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) Expressions defined in paragraph 67 have the same meanings in
20this 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
apparatus kept on, under or over any land for the purposes of an
25operator’s network.

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

(3) This paragraph does not authorise the undertaker to make an
alteration of apparatus after any failure by the undertaker to give
30notice in accordance with sub-paragraph (2).

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

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

(a) 35any expenses incurred by the operator in, or in connection
with, supervising the undertaker when making the
alteration; and

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

(6) 40Any amount which is not paid in accordance with sub-paragraph
(5) is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

(7) In this paragraph “emergency undertaker’s works” means
undertaker’s works carried out in order to stop anything already

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occurring, or to prevent anything imminent from occurring, which
is likely to cause—

(a) danger to persons or property,

(b) interference with the exercise of any functions conferred or
5imposed 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
circumstances) to carry out with those works.

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

72 (1) 10An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

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

(b) 15does so—

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

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

(2) 20An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

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

(b) 25unreasonably fails to comply with any reasonable
requirement of the operator under this Part of this code
when doing so.

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

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

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

(4) 35A 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
by the works or failure, or

(b) 40a 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.

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Part 11 Overhead apparatus

Introductory

73 This Part of this code—

(a) 5confers a power on operators to install and keep certain
overhead apparatus, and

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

Power to fly lines

74 (1) 10This paragraph applies where any electronic communications
apparatus is kept on or over any land for the purposes of an
operator’s network.

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

(a) 15pass over other land adjacent to, or in the vicinity of, the
land on or over which the apparatus is kept,

(b) are 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
20metres of any building over which they pass.

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

(a) any electronic communications apparatus used to support,
carry or suspend a line installed under sub-paragraph (2),
25or

(b) any line which, as a result of its position, interferes with the
carrying 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
30persons (whether corporate or unincorporate).

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
35apparatus, 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
40completed, 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

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which the apparatus that is installed is directly or
indirectly connected.

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

(a) must be attached in a position where it is reasonably
5legible, and

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

(4) 10Any person giving such a notice at that address in respect of that
apparatus is to be treated as having given that address for the
purposes 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
15exceeding level 2 on the standard scale.

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

20Part 12 Rights to object to certain apparatus

Introductory

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

(a) 25the cases in which and persons by whom a right can be
exercised, and

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

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

77 (1) 30A 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
or 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
35code if the person—

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

(b) is not bound by a code right enabling the operator to keep
the apparatus installed on, under or over the tidal water or
40lands, and

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

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(3) A 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
5code if the person—

(a) is 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) 10electronic communications apparatus is kept on or over
land 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
15code if—

(a) the 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) 20the enjoyment of the neighbouring land is capable
of 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
25electronic communications apparatus if the apparatus—

(a) replaces 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) 30A person with a right to object under this Part (“the objector”) may
exercise the right by giving a notice to the operator.

(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
35months beginning with the date on which installation of
the 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) 40This paragraph applies if the notice is given before 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

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the period of four months beginning with that date, the objector
may apply to the court to have the objection upheld.

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

(4) 5The first condition is that the apparatus appears materially to
prejudice the objector’s enjoyment of, or interest in, the land by
reference 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) 10substantially increase the cost or diminish the quality of
the service provided by the operator’s network to persons
who 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
15that any proposed alteration was not adopted originally
or, as the case may be, that the apparatus has been
unnecessarily 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) 20If the court upholds an objection under this paragraph it may by
order do any of the following—

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

(b) authorise the installation (instead of the apparatus to
25which the objection relates), in a manner and position
specified in the order, of any apparatus specified in the
order;

(c) direct that no objection may be made under this paragraph
in respect of any apparatus the installation of which is
30authorised by the court.

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

(a) the court may give such directions as it thinks fit for
35ensuring that no compensation is paid until any
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
40otherwise 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
45on 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.

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

80 (1) This 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) 5At 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
may apply to the court to have the objection upheld.

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

(a) 10the alteration is necessary to enable the objector to carry
out a proposed improvement of the land by reference to
which 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
15operator’s network.

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

(5) An order under this paragraph may provide for the alteration to
20be carried out with such modifications, on such terms and subject
to such conditions as the court thinks fit.

(6) But 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
25paragraph.

(7) An order made under this paragraph must, unless the court
otherwise 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
30the order.

(8) This paragraph is subject to paragraph 81.

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

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

81 (1) 35This 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,
or

(b) an order under paragraph 80 directing the alteration of any
40apparatus.

(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
court appropriate that the operator should have for the
purpose of making the alteration or, as the case may be,
45installing the apparatus, or