Digital Economy Bill (HL Bill 80)

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such an office-holder for the purposes of the Scottish
Administration, the office-holder;

(e) in the case of land belonging to Her Majesty in right of Her
Majesty’s Government in Northern Ireland, the Northern
5Ireland department having the management of the land in
question;

(f) in the case of land belonging to a government department
or a Northern Ireland department or held in trust for Her
Majesty for the purposes of a government department or a
10Northern Ireland department, that department.

(7) Any question as to the authority that is the appropriate authority
in relation to any land is to be referred to the Treasury, whose
decision is final.

(8) Paragraphs 54 (offence in relation to transport land rights) and
1575(5) (offence in relation to notices on overhead apparatus) do not
apply where this code applies in the case of the Secretary of State
or a Northern Ireland department by virtue of section 106(3)(b).

(9) References in this paragraph to an office-holder in the Scottish
Administration are to be construed in accordance with section
20126(7) of the Scotland Act 1998.

Meaning of “occupier”

105 (1) References in this code to an occupier of land are to the occupier
of the land for the time being.

(2) References in this code to an occupier of land, in relation to a
25footpath or bridleway that crosses and forms part of agricultural
land, are to the occupier of that agricultural land.

(3) Sub-paragraph (4) applies in relation to land which is—

(a) a street in England and Wales or Northern Ireland, other
than a footpath or bridleway within sub-paragraph (2), or

(b) 30a road in Scotland, other than such a footpath or
bridleway.

(4) References in this code to an occupier of land—

(a) in relation to such a street in England and Wales, are to the
street managers within the meaning of Part 3 of the New
35Roads and Street Works Act 1991,

(b) in relation to such a street in Northern Ireland, are to the
street managers within the meaning of the Street Works
(Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)), and

(c) in relation to such a road in Scotland, are to the road
40managers within the meaning of Part 4 of the New Roads
and Street Works Act 1991.

(5) Sub-paragraph (6) applies in relation to land which—

(a) is unoccupied, and

(b) is not a street in England and Wales or Northern Ireland or
45a road in Scotland.

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(6) References in this code to an occupier of land, in relation to land
within sub-paragraph (5), are to—

(a) the person (if any) who for the time being exercises powers
of management or control over the land, or

(b) 5if there is no person within paragraph (a), to every person
whose interest in the land would be prejudicially affected
by the exercise of a code right in relation to the land.

(7) In this paragraph—

(a) “agricultural land” includes land which is being brought
10into use for agriculture, and

(b) references in relation to England and Wales to a footpath
or bridleway include a restricted byway.

Lands Tribunal for Scotland procedure rules

106 The power to make rules under section 3(6) of the Lands Tribunal
15Act 1949 (Lands Tribunal for Scotland procedure rules) for the
purposes of this code or regulations made under it is exercisable
by the Scottish Ministers instead of by the Secretary of State (and
any reference there to the approval of the Treasury does not
apply).

20Arbitrations in Scotland

107 Until the Arbitration (Scotland) Act 2010 is in force in relation to
any arbitrations carried out under or by virtue of this code, that
Act applies as if it were in force in relation to those arbitrations.

General interpretation

108 (1) 25In this code—

  • “agriculture” and “agricultural”—

    (a)

    in relation to England and Wales, have the same
    meanings as in the Highways Act 1980,

    (b)

    in relation to Scotland, have the same meanings as in
    30the Town and Country Planning (Scotland) Act 1997,
    and

    (c)

    in relation to Northern Ireland, have the same
    meanings as in the Agriculture Act (Northern
    Ireland) 1949;

  • 35“bridleway” and “footpath”—

    (a)

    in relation to England and Wales, have the same
    meanings as in the Highways Act 1980,

    (b)

    in relation to Scotland, have the same meanings as
    Part 3 of the Countryside (Scotland) Act 1967, and

    (c)

    40in relation to Northern Ireland, mean a way over
    which the public have, by virtue of the Access to the
    Countryside (Northern Ireland) Order 1983 (SI 1983/
    1895 (NI 18)), a right of way (respectively) on
    horseback and on foot;

  • 45“code agreement” has the meaning given by paragraph 28(5);

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  • “Crown interest” has the meaning given by paragraph 104(2)
    and (3);

  • “enactment” includes—

    (a)

    an enactment comprised in subordinate legislation
    5within the meaning of the Interpretation Act 1978,

    (b)

    an enactment comprised in, or in an instrument made
    under, a Measure or Act of the National Assembly for
    Wales,

    (c)

    an enactment comprised in, or in an instrument made
    10under, an Act of the Scottish Parliament, and

    (d)

    an enactment comprised in, or in an instrument made
    under, Northern Ireland legislation;

  • “land” does not include electronic communications
    apparatus;

  • 15“landowner” has the meaning given by paragraph 36(1);

  • “lease” includes—

    (a)

    in relation to England and Wales and Northern
    Ireland, any leasehold tenancy (whether in the nature
    of a head lease, sub-lease or underlease) and any
    20agreement to grant such a tenancy but not a mortgage
    by demise or sub-demise, and

    (b)

    in relation to Scotland, any sub-lease and any
    agreement to grant a sub-lease,

    and “lessee” is to be construed accordingly;

  • 25“relevant person” has the meaning given by paragraph 19(1);

  • “restricted byway” has the same meaning as in Part 2 of the
    Countryside and Rights of Way Act 2000;

  • “road”—

    (a)

    in relation to Scotland, has the same meaning as in
    30Part 4 of the New Roads and Street Works Act 1991;

    (b)

    in relation to Northern Ireland, has the same meaning
    as in the Roads (Northern Ireland) Order 1993 (SI
    1993/3160 (NI 15));

  • “site provider” has the meaning given by paragraph 29(1);

  • 35“street”—

    (a)

    in relation to England and Wales, has the same
    meaning as in Part 3 of the New Roads and Street
    Works Act 1991, and

    (b)

    in relation to Northern Ireland, has the same meaning
    40as in the Street Works (Northern Ireland) Order 1995
    (SI 1995/3210 (NI 19)).

(2) In this code, references to the alteration of any apparatus include
references to the moving, removal or replacement of the
apparatus.”

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Section 4

SCHEDULE 2 The electronic communications code: transitional provision

Interpretation

1 (1) This paragraph has effect for the purposes of this Schedule.

(2) 5The “existing code” means Schedule 2 to the Telecommunications Act 1984.

(3) The “new code” means Schedule 3A to the Communications Act 2003.

(4) A “subsisting agreement” means—

(a) an agreement for the purposes of paragraph 2 or 3 of the existing
code, or

(b) 10an order under paragraph 5 of the existing code,

which is in force, as between an operator and any person, at the time the new
code comes into force (and whose terms do not provide for it to cease to have
effect at that time).

(5) Expressions used in this Schedule and in the new code have the same
15meaning as in the new code, subject to any modification made by this
Schedule.

Effect of subsisting agreement

2 (1) A subsisting agreement has effect after the new code comes into force as an
agreement under Part 2 of the new code between the same parties, subject to
20the modifications made by this Schedule.

(2) A person who is bound by a right by virtue of paragraph 2(4) of the existing
code in consequence of a subsisting agreement is, after the new code comes
into force, treated as bound pursuant to Part 2 of the new code.

Limitation of code rights

3 25In relation to a subsisting agreement, references in the new code to a code
right are—

(a) in relation to the operator and the land to which an agreement for the
purposes of paragraph 2 of the existing code relates, references to a
right for the statutory purposes to do the things listed in paragraph
302(1)(a) to (c) of the existing code;

(b) in relation to land to which an agreement for the purposes of
paragraph 3 of the existing code relates, a right to do the things
mentioned in that paragraph.

Limitation of persons bound

4 (1) 35A person bound by a code right by virtue only of paragraph 2(3) of the
existing code continues to be bound by it so long as they would be bound if
paragraph 2(3) of the existing code continued to have effect.

(2) In relation to such a person, paragraph 4(4) to (12) of the existing code
continue to have effect, but as if in paragraph 4(4)(b) the reference to
40paragraph 21 of the existing code were a reference to Part 5 of the new code.

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Exclusion of assignment, upgrading and sharing provisions

5 (1) Part 3 of the new code (assignment of code rights, and upgrading and
sharing of apparatus) does not apply in relation to a subsisting agreement.

(2) Part 3 of the new code does not apply in relation to a code right conferred
5under the new code if, at the time when it is conferred, the exercise of the
right depends on a right that has effect under a subsisting agreement.

Termination and modification of agreements

6 (1) This paragraph applies in relation to a subsisting agreement, in place of
paragraph 28(2) to (4) of the new code.

(2) 10Part 5 of the new code (termination and modification of agreements) does
not apply to a subsisting agreement that is a lease of land in England and
Wales, if—

(a) it is a lease to which Part 2 of the Landlord and Tenant Act 1954
applies, and

(b) 15there is no agreement under section 38A of that Act (agreements to
exclude provisions of Part 2) in relation the tenancy.

(3) Part 5 of the new code does not apply to a subsisting agreement that is a lease
of land in England and Wales, if—

(a) the primary purpose of the lease is not to grant code rights (the rights
20referred to in paragraph 3 of this Schedule), and

(b) there is an agreement under section 38A of the 1954 Act in relation
the tenancy.

(4) Part 5 of the new code does not apply to a subsisting agreement that is a lease
of land in Northern Ireland, if it is a lease to which the Business Tenancies
25(Northern Ireland) Order 1996 (SI 1996/725 (NI 5)) applies.

7 (1) Subject to paragraph 6, Part 5 of the new code applies to a subsisting
agreement with the following modifications.

(2) The “site provider” (see paragraph 29 of the new code) does not include a
person who was under the existing code bound by the agreement only by
30virtue of paragraph 2(2)(c) of that code.

(3) Where the unexpired term of the subsisting agreement at the coming into
force of the new code is less than 18 months, paragraph 30 applies (with
necessary modification) as if for the period of 18 months referred to in sub-
paragraph (3)(a) there were substituted a period equal to the unexpired term
35or 3 months, whichever is greater.

(4) Paragraph 33 applies with the omission of sub-paragraph (13)(d).

Apparatus, works etc

8 (1) Paragraphs 9 to 12 of the existing code (rights in relation to street works,
flying lines, tidal waters, linear obstacles) continue to apply in relation to
40anything in the process of being done when the new code comes into force.

(2) Apparatus lawfully installed under any of those provisions (before or after
the time when the new code comes into force) is to be treated as installed
under the corresponding provision of the new code if it could have been

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installed under that provision if the provision had been in force or applied
to its installation.

(3) The corresponding provisions are—

(a) Part 7 (transport land rights), in relation to paragraph 12 of the
5existing code;

(b) Part 8 (street work rights), in relation to paragraph 9 of the existing
code;

(c) Part 9 (tidal water rights), in relation to paragraph 11 of the existing
code;

(d) 10paragraph 70 (power to fly lines), in relation to paragraph 10 of the
existing code.

9 Any agreement given in accordance with paragraph 26(3) of the existing
code for the purposes of paragraph 11(2) of that code has effect for the
purposes of paragraph 60 of the new code as if given in accordance with
15paragraph 100 of that code

10 Any agreement that has effect under paragraph 15 of the existing code and
that would be sufficient for the purpose of doing anything wholly inside a
sewer if that paragraph continued in force is sufficient for that purpose
under paragraph 98(2) of the new code.

20Court applications for required rights etc

11 (1) This paragraph applies where—

(a) before the time when the new code comes into force, a notice has
been given under paragraph 5(1) of the existing code, and

(b) at that time no application has been made to the court in relation to
25the notice.

(2) The notice has effect as if given under paragraph 19(2) of the new code.

12 (1) This paragraph applies where before the time when the new code comes into
force—

(a) a notice has been given under paragraph 5(1) of the existing code,
30and

(b) an application has been made to the court in relation to the notice.

(2) Subject to sub-paragraph (3), the existing code continues to apply in relation
to the application.

(3) An order made under the existing code by virtue of sub-paragraph (2) has
35effect as an order under paragraph 19 of the new code.

Temporary code rights

13 (1) The coming into force of the new code does not affect any order made under
paragraph 6 of the existing code.

(2) An application under that paragraph that is pending in relation to
40proceedings under paragraph 5 of that code when a notice under paragraph
13(4) takes effect in relation to the proceedings has effect as an application
under paragraph 26 of the new code.

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Compensation

14 The repeal of the existing code does not affect paragraph 16 of that code, or
any other right to compensation, as it applies in relation to the exercise of a
right before the new code comes into force.

5Objections in relation to apparatus

15 The repeal of the existing code does not affect paragraphs 17 and 18 of that
code as they apply in relation to anything whose installation was completed
before the repeal comes into force.

16 (1) Subject to the following provisions of this paragraph, the repeal of the
10existing code does not affect paragraph 20 of that code as it applies in
relation to anything whose installation was completed before the repeal
comes into force.

(2) A right under paragraph 20 is not by virtue of sub-paragraph (1) exercisable
in relation to any apparatus by a person who is a party to, or is bound by, an
15agreement under the new code in relation to the apparatus.

(3) A subsisting agreement is not an agreement under the new code for the
purposes of sub-paragraph (2).

17 Part 12 of the new code does not apply in relation to apparatus whose
installation was completed before the new code came into force.

20Tree lopping

18 (1) This paragraph applies where—

(a) before the time when the new code comes into force, a notice has
been given under paragraph 19 of the existing code, and

(b) at that time no application has been made to the court in relation to
25the notice.

(2) The notice and any counter-notice under that paragraph have effect as if
given under paragraph 78 of the new code.

19 (1) This paragraph applies where before the time when the new code comes into
force—

(a) 30a notice has been given under paragraph 19 of the existing code, and

(b) an application has been made to the Court in relation to the notice.

(2) The existing code continues to apply in relation to the application.

Right to require removal of apparatus

20 (1) This paragraph applies where before the repeal of the existing code comes
35into force a person has given notice under paragraph 21(2) of that code
requiring the removal of apparatus.

(2) The repeal does not affect the operation of paragraph 21 in relation to
anything done or that may be done under that paragraph following the
giving of the notice.

(3) 40For the purposes of applying that paragraph after the repeal comes into
force, steps specified in a counter-notice under sub-paragraph (4)(b) of that

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paragraph as steps which the operator proposes to take under the existing
code are to be read as including any corresponding steps that the operator
could take under the new code or by virtue of this Schedule.

Undertaker’s works

21 5The repeal of the existing code does not affect the operation of paragraph 23
of that code in relation to works—

(a) in relation to which a notice has been given under that paragraph
before the time when that repeal comes into force, or

(b) which have otherwise been commenced before that time.

10Supplementary

22 Any agreement which, immediately before the repeal of the existing code, is
a relevant agreement for the purposes of paragraph 29 of that code is to be
treated in relation to times after the coming into force of that repeal as a
relevant agreement for the purposes of paragraph 17 of the new code.

23 15Part 15 of the new code applies in relation to notices under this Schedule as
it applies in relation to notices under that code.

24 Paragraphs 24 to 27 of the existing code continue to have effect in relation to
any provision of that code so far as the provision has effect by virtue of this
Schedule.

25 20A person entitled to compensation by virtue of this Schedule is not entitled
to compensation in respect of the same matter under any provision of the
new code.

Section 4

SCHEDULE 3 Electronic communications code: consequential amendments

25Part 1 General provision

Interpretation

1 In this Part—

  • “the commencement date” means the day on which Schedule 3A to the
    30Communications Act 2003 comes into force;

  • “enactment” includes—

    (a)

    an enactment comprised in subordinate legislation within the
    meaning of the Interpretation Act 1978,

    (b)

    an enactment comprised in, or in an instrument made under,
    35a Measure or Act of the National Assembly for Wales,

    (c)

    an enactment comprised in, or in an instrument made under,
    an Act of the Scottish Parliament, and

    (d)

    an enactment comprised in, or in an instrument made under,
    Northern Ireland legislation;

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  • “the existing code” means Schedule 2 to the Telecommunications Act
    1984;

  • “the new code” means Schedule 3A to the Communications Act 2003.

References to the code or provisions of the code

2 (1) 5In any enactment passed or made before the commencement date, unless the
context requires otherwise—

(a) a reference to the existing code is to be read as a reference to the new
code;

(b) a reference to a provision of the existing code listed in column 1 of
10the table is to be read as a reference to the provision of the new code
in the corresponding entry in column 2.

(2) This paragraph does not affect the amendments made by Part 2 of this
Schedule or the power to make amendments by regulations under section 6.

(3) This paragraph does not affect section 17(2) of the Interpretation Act 1978
15(effect of repeal and re-enactment) in relation to any reference to a provision
of the existing code not listed in the table.

Existing code New code
Paragraph 9 Part 8
Paragraph 21 Part 6
Paragraph 23 20Part 10
Paragraph 29 Paragraph 17

References to a conduit system

3 In any enactment passed or made before the commencement date, unless the
context requires otherwise—

(a) 25a reference to a conduit system, where it is defined by reference to
the existing code, is to be read as a reference to an infrastructure
system as defined by paragraph 7(1) of the new code, and;

(b) a reference to provision of such a system is to be read in accordance
with paragraph 7(2) of the new code (reference to provision includes
30establishing or maintaining).

Part 2 Amendments of particular enactments

Landlord and Tenant Act 1954 (c. 56)

4 In section 43 of the Landlord and Tenant Act 1954 (tenancies to which
35provisions on security of tenure for business etc tenants do not apply) after
subsection (3) insert—

(4) This Part does not apply to a tenancy—

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(a) the primary purpose of which is to grant code rights within
the meaning of Schedule 3A to the Communications Act 2003
(the electronic communications code), and

(b) which is granted after that Schedule comes into force.””

5Opencast Coal Act 1958 (c. 69)

5 (1) Section 45 of the Opencast Coal Act 1958 (provisions as to telegraphic lines)
is amended as follows.

(2) In subsection (2) for “paragraph 23 of the electronic communications code”
substitute “Part 10 of Schedule 3A to the Communications Act 2003 (the
10electronic communications code)”.

(3) In section (4) for “Paragraph 1(2) of the electronic communications code”
substitute “Paragraph 103(2) of the electronic communications code”.

Land Drainage (Scotland) Act 1958 (c. 24)

6 In section 17 of the Land Drainage Act (Scotland) Act 1958 (application of
15paragraph 23 of the code) for “Paragraph 23 of the electronic
communications code” substitute “Part 10 of Schedule 3A to the
Communications Act 2003 (the electronic communications code)”.

Pipe-lines Act 1962 (c. 58)

7 In section 40(2) of the Pipe-lines Act 1962 (avoidance of interference with
20lines) for “Paragraph 23 of the electronic communications code” substitute
“Part 10 of Schedule 3A to the Communications Act 2003 (the electronic
communications code)”.

Harbours Act 1964 (c. 40)

8 In section 53 of the Harbours Act 1964 (application of paragraph 23 of the
25code) for “Paragraph 23 of the electronic communications code” substitute
“Part 10 of Schedule 3A to the Communications Act 2003 (the electronic
communications code)”.

Fair Trading Act 1973 (c. 41)

9 In section 137(3)(f) of the Fair Trading Act 1973 (general interpretation:
30services covered) for “paragraph 29 of Schedule 2 to the
Telecommunications Act 1984” substitute “paragraph 17 of Schedule 3A to
the Communications Act 2003 (the electronic communications code)”.

Highways Act 1980 (c. 66)

10 The Highways Act 1980 is amended as follows.

11 35In section 177(12) (restriction of construction over highways: application of
paragraph 23 of code) for “paragraph 23 of the electronic communications
code” substitute “Part 10 of Schedule 3A to the Communications Act 2003
(the electronic communications code)”.

12 (1) Section 334 (savings relating to electronic communications apparatus) is
40amended as follows.