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(a) an order under paragraph 43(2) (order requiring operator
to restore land), or

(b) an order under paragraph 43(4) (order enabling
landowner to recover cost of restoring land).

(10) 5If the court makes an order under paragraph 43(2), but the
operator does not comply with the agreement imposed on the
operator and the landowner by virtue of paragraph 43(7), the
landowner may make an application to the court for an order
under paragraph 43(4).

(11) 10In the application of sub-paragraph (2) to Scotland the reference to
a person who is the owner of the freehold estate in the land is to be
read as a reference to a person who is the owner of the land.

What orders may the court make on an application under paragraphs 39 to 42?

43 (1) An order under this sub-paragraph is an order that the operator
15must, within the period specified in the order—

(a) remove the electronic communications apparatus, and

(b) restore the land to its condition before the apparatus was
placed on, under or over the land.

(2) An order under this sub-paragraph is an order that the operator
20must, within the period specified in the order, restore the land to
its condition before the code right was exercised.

(3) An order under this sub-paragraph is an order that the landowner,
occupier or third party may do any of the following—

(a) remove or arrange the removal of the electronic
25communications apparatus;

(b) sell any apparatus so removed;

(c) recover the costs of any action under paragraph (a) or (b)
from the operator;

(d) recover from the operator the costs of restoring the land to
30its condition before the apparatus was placed on, under or
over the land;

(e) retain the proceeds of sale of the apparatus to the extent
that these do not exceed the costs incurred by the
landowner, occupier or third party as mentioned in
35paragraph (c) or (d).

(4) An order under this sub-paragraph is an order that the landowner
may recover from the operator the costs of restoring the land to its
condition before the code right was exercised.

(5) An order under this paragraph on an application under paragraph
4039 may require the operator to pay compensation to the
landowner for any loss or damage suffered by the landowner as a
result of the presence of the apparatus on the land during the
period when the landowner had the right to require the removal
of the apparatus from the land but was not able to exercise that
45right.

(6) Paragraph 83 makes further provision about compensation under
sub-paragraph (5).

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(7) An order under sub-paragraph (1) or (2) takes effect as an
agreement between the operator and the landowner, occupier or
third party that—

(a) requires the operator to take the steps specified in the
5order, and

(b) otherwise contains such terms as the court may so specify.

Part 7 Conferral of transport land rights and their exercise

Introductory

44 10This Part of this code makes provision about—

(a) the conferral of transport land rights, and

(b) the exercise of transport land rights.

Transport land and transport undertakers

45 In this Part of this code—

  • 15“transport land” means land which is used wholly or
    mainly—

    (a)

    as a railway, canal or tramway, or

    (b)

    in connection with a railway, canal or tramway on the
    land;

  • 20“transport undertaker”, in relation to transport land, means
    the person carrying on the railway, canal or tramway
    undertaking.

Conferral of transport land rights

46 (1) An operator may exercise a transport land right for the statutory
25purposes.

(2) But that is subject to the following provisions of this Part of this
code.

The transport land rights

47 (1) For the purposes of this code a “transport land right”, in relation
30to an operator, is—

(a) a right to cross any transport land with a line;

(b) a right, for the purposes of crossing any transport land
with a line—

(i) to install and keep the line and any other electronic
35communications apparatus on, under or over the
transport land;

(ii) to inspect, maintain, adjust, alter, repair, upgrade
or operate electronic communications apparatus
on, under or over the transport land;

(iii) 40a right to carry out any works on the transport land
for or in connection with the exercise of a right
under sub-paragraph (i) or (ii);

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(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) 5A 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,
10in 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
15interfere with traffic on the railway, canal or tramway.

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
20of 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) 25The 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—

  • 30“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) 35This 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) 40If 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”).

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(4) In a case where notice of objection is given, the operator may
exercise 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) 5the arbitration notice period has ended, and

(b) no arbitration notice has been given.

(6) In 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) 10“arbitration notice period” means the period of 28 days
beginning with the day on which objection notice is given;

(b) expressions defined in paragraph 48 have the same
meanings as in that paragraph.

Emergency works: when can an operator exercise the transport land rights?

50 (1) 15An 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
emergency works, the operator must give the transport
undertaker an emergency works notice as soon as reasonably
20practicable after starting the works.

(3) An “emergency works notice” is a notice which—

(a) identifies the emergency works;

(b) contains a statement of the reason why the works are
emergency works; and

(c) 25contains either—

(i) the matters which would be included in a notice of
proposed works (if one were given in relation to
the works), or

(ii) a reference to a notice of proposed works which
30relates to the works that are emergency works (if
one has been given).

(4) A transport undertaker may, within the compensation notice
period, give the operator notice which requires the operator to pay
compensation for loss or damage sustained in consequence of the
35carrying out of emergency works (“compensation notice”).

(5) The operator must pay the transport undertaker any
compensation which is required by a compensation notice (if
given within the compensation notice period).

(6) The amount of compensation payable under sub-paragraph (5) is
40to be agreed between the operator and the transport undertaker.

(7) But if—

(a) the compensation agreement period has ended, and

(b) the operator and the transport undertaker have not agreed
the amount of compensation payable under sub-
45paragraph (6),

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the operator or the transport undertaker may give the other notice
that the disagreement is to be referred to arbitration under
paragraph 51.

(8) A reference in this paragraph to emergency works includes a
5reference 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) In this paragraph—

  • “compensation agreement period” means the period of 28
    10days beginning with the day on which a compensation
    notice is given;

  • “compensation notice period” means the period of 28 days
    beginning with the day on which an emergency works
    notice is given;

  • 15“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)

    the interruption of any service provided by the
    20operator’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;

  • “notice of proposed works” means such notice given under
    25paragraph 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
referred to arbitration—

(a) 30an 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) by agreement between the parties, or

(b) 35in 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) power to require the operator to give the arbitrator a plan
40and 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
such form as the arbitrator thinks appropriate;

(c) 45power 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);

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(d) power to make an award—

(i) requiring modifications to the proposed works,
and

(ii) specifying the terms on which, and the conditions
5subject to which, the proposed works may be
carried 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
10person in consequence of the carrying out of the
works;

(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—

(a) 15power 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) power to award compensation, payable to the transport
20undertaker, 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
(3)(a), (b) or (c) or (4)(a).

(6) 25In 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) The arbitrator’s power under sub-paragraph (3) or (4) to award
30compensation 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
determined on the basis of what would have been fair and
35reasonable 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) In this paragraph “party” means—

(a) 40the operator, or

(b) the transport undertaker.

When can a transport undertaker require an operator to alter communications
apparatus?

52 (1) A transport undertaker may give an operator notice which
45requires 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

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on, under or over transport land interferes with, or is likely to
interfere with—

(a) the carrying on of the transport undertaker’s railway,
canal or tramway undertaking, or

(b) 5anything done or to be done for the purposes of its railway,
canal or tramway undertaking.

(2) The 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
10requiring alterations.

(3) The operator must comply with the notice requiring alterations,
within a reasonable time and to the reasonable satisfaction of the
transport undertaker, if—

(a) the notice period has ended, and

(b) 15no 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) The court must not make an order unless it is satisfied that the
20order 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
being access to a choice of high quality electronic communications
25services.

(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) may impose such conditions, and

(b) 30may 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
respective interests.

(9) 35In 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
    communications apparatus specified in notice requiring
    40alterations.

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
to be transport land.

(2) 45After 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,

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accordingly, the operator may continue to exercise any transport
land right in relation to the land as if it were still transport land).

(3) But 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
5with 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
sub-paragraph (2) does not authorise the operator—

(a) to cross the land with any line that is not in place at the
10time 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
when the land ceases to be transport land.

(6) But sub-paragraph (5) does not affect the power of the operator to
15replace 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
apparatus which—

(a) is not substantially different from the existing line or
20apparatus, and

(b) is not in a significantly different position.

(7) The occupier of the land may, at any time after the land ceases to
be 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
25accordance 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
the notice of termination is given.

(9) On the date specified in notice of termination in accordance with
30sub-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) An operator is guilty of an offence if the operator starts any works
in contravention of any provision of paragraph 48, paragraph 49
35or 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
scale.

(3) In a case where this Part of this code applies in accordance with
40paragraph 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.

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Part 8 Conferral of street work rights and their exercise

Introductory

55 This Part of this code makes provision about—

(a) 5the conferral of street work rights, and

(b) the exercise of street work rights.

Streets and roads

56 In this Part of this code—

  • “road” means—

    (a)

    10a road in Scotland which is a public road;

    (b)

    a road in Northern Ireland;

  • “street” means a street in England and Wales which is a
    maintainable highway (within the meaning of Part 3 of
    New Roads and Street Works Act 1991), other than one
    15which 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.

Conferral of street work rights

57 (1) An operator may exercise a street work right for the statutory
20purposes.

(2) But that is subject to the following provisions of this Part of this
code.

The street work rights

58 (1) For the purposes of this code a “street work right”, in relation to an
25operator, is—

(a) a right to install and keep electronic communications
apparatus in, on, under, over, along or across a street or a
road;

(b) a right to inspect, maintain, adjust, alter, repair, upgrade or
30operate electronic communications apparatus which is
installed or kept by the exercise of the right under
paragraph (a);

(c) a right to carry out any works in, on, under, over, along or
across a street or road for or in connection with the exercise
35of 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
communications apparatus which is installed or kept by
the exercise of the right under paragraph (a).

(2) 40The works that may be carried out under sub-paragraph (1)(c)
include—

(a) breaking up or opening a street or a road;

(b) tunnelling or boring under a street or a road;

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(c) breaking up or opening a sewer, drain or tunnel.

Part 9 Conferral of tidal water rights and their exercise

Introductory

59 5This 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

60 In this Part of this code “tidal water or lands” includes—

(a) 10any 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

61 (1) An operator may exercise a tidal water right for the statutory
15purposes.

(2) But that is subject to the following provisions of this Part of this
code.

The tidal water rights

62 (1) For the purposes of this code a “tidal water right”, in relation to an
20operator, 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
operate electronic communications apparatus on, under or
25over the tidal water or lands;

(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,
30maintain, 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.

35Exercise of tidal water right: Crown land

63 (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
40with paragraph 103.