Digital Economy Bill (HL Bill 102)

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(d) an interest which belongs to a government department or
which is held in trust for Her Majesty for the purposes of a
government department, or

(e) an interest which belongs to an office-holder in the Scottish
5Administration or which is held in trust for Her Majesty
for the purposes of the Scottish Administration by such an
office-holder.

(3) This includes, in particular—

(a) an interest which belongs to Her Majesty in right of Her
10Majesty’s Government in Northern Ireland, and

(b) an interest which belongs to a Northern Ireland
department or which is held in trust for Her Majesty for the
purposes of a Northern Ireland department.

(4) Where an agreement is required by this code to be given in respect
15of any Crown interest subsisting in any land, the agreement must
be given by the appropriate authority.

(5) Where a notice under this code is required to be given in relation
to land in which a Crown interest subsists, the notice must be
given by or to the appropriate authority (as the case may require).

(6) 20In this paragraph “the appropriate authority” means—

(a) in the case of land belonging to Her Majesty in right of the
Crown, the Crown Estate Commissioners or, as the case
may be, the government department or office-holder in the
Scottish Administration having the management of the
25land in question;

(b) in the case of land belonging to Her Majesty in right of the
Duchy of Lancaster, the Chancellor of the Duchy of
Lancaster;

(c) in the case of land belonging to the Duchy of Cornwall,
30such person as the Duke of Cornwall, or the possessor for
the time being of the Duchy of Cornwall, appoints;

(d) in the case of land belonging to an office-holder in the
Scottish Administration or held in trust for Her Majesty by
such an office-holder for the purposes of the Scottish
35Administration, 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
Ireland department having the management of the land in
question;

(f) 40in 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
Northern Ireland department, that department.

(7) Any question as to the authority that is the appropriate authority
45in 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
74(5) (offence in relation to notices on overhead apparatus) do not
apply where this code applies in the case of the Secretary of State
50or a Northern Ireland department by virtue of section 106(3)(b).

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(9) References in this paragraph to an office-holder in the Scottish
Administration are to be construed in accordance with section
126(7) of the Scotland Act 1998.

Meaning of “occupier”

104 (1) 5References 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
footpath or bridleway that crosses and forms part of agricultural
land, are to the occupier of that agricultural land.

(3) 10Sub-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) a road in Scotland, other than such a footpath or
bridleway.

(4) 15References 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
Roads and Street Works Act 1991,

(b) in relation to such a street in Northern Ireland, are to the
20street 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
managers within the meaning of Part 4 of the New Roads
and Street Works Act 1991.

(5) 25Sub-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
a road in Scotland.

(6) References in this code to an occupier of land, in relation to land
30within 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) if there is no person within paragraph (a), to every person
whose interest in the land would be prejudicially affected
35by the exercise of a code right in relation to the land.

(7) In this paragraph—

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

(b) references in relation to England and Wales to a footpath
40or bridleway include a restricted byway.

Lands Tribunal for Scotland procedure rules

105 The power to make rules under section 3(6) of the Lands Tribunal
Act 1949 (Lands Tribunal for Scotland procedure rules) for the
purposes of this code or regulations made under it is exercisable
45by the Scottish Ministers instead of by the Secretary of State (and

Digital Economy BillPage 162

any reference there to the approval of the Treasury does not
apply).

Arbitrations in Scotland

106 Until the Arbitration (Scotland) Act 2010 is in force in relation to
5any 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

107 (1) In this code—

  • “agriculture” and “agricultural”—

    (a)

    10in 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
    the Town and Country Planning (Scotland) Act 1997,
    and

    (c)

    15in relation to Northern Ireland, have the same
    meanings as in the Agriculture Act (Northern
    Ireland) 1949;

  • “bridleway” and “footpath”—

    (a)

    in relation to England and Wales, have the same
    20meanings 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)

    in relation to Northern Ireland, mean a way over
    which the public have, by virtue of the Access to the
    25Countryside (Northern Ireland) Order 1983 (SI 1983/
    1895 (NI 18)), a right of way (respectively) on
    horseback and on foot;

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

  • “Crown interest” has the meaning given by paragraph 103(2)
    30and (3);

  • “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
    35under, a 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
    40under, Northern Ireland legislation;

  • “land” does not include electronic communications
    apparatus;

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

  • “lease” includes—

    (a)

    45in 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


  • Digital Economy BillPage 163

    agreement 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,

5and “lessee” is to be construed accordingly;

  • “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)

    10in relation to Scotland, has the same meaning as in
    Part 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));

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

  • “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)

    20in relation to Northern Ireland, has the same meaning
    as 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
    25apparatus.”

    Section 4

    SCHEDULE 2 The electronic communications code: transitional provision

    Interpretation

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

    (2) 30The “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) 35an 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
    40meaning as in the new code, subject to any modification made by this
    Schedule.

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    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
    the modifications made by this Schedule.

    (2) 5A 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 In relation to a subsisting agreement, references in the new code to a code
    10right 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
    2(1)(a) to (c) of the existing code;

    (b) 15in 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) A person bound by a code right by virtue only of paragraph 2(3) of the
    20existing 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
    paragraph 21 of the existing code were a reference to Part 5 of the new code.

    25Exclusion 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
    under the new code if, at the time when it is conferred, the exercise of the
    30right 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) Part 5 of the new code (termination and modification of agreements) does
    35not 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) there is no agreement under section 38A of that Act (agreements to
    40exclude 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—

    Digital Economy BillPage 165

    (a) the primary purpose of the lease is not to grant code rights (the rights
    referred 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) 5Part 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
    (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) 10The “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
    virtue 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
    15necessary 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
    or 3 months, whichever is greater.

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

    Apparatus, works etc

    8 (1) 20Paragraphs 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
    anything 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
    25under the corresponding provision of the new code if it could have been
    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
    30existing 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) 35paragraph 73 (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 63 of the new code as if given in accordance with
    40paragraph 103 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 101(2) of the new code.

    Digital Economy BillPage 166

    Court 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) 5at that time no application has been made to the court in relation to
    the 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) 10a notice has been given under paragraph 5(1) of the existing code,
    and

    (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) 15An order made under the existing code by virtue of sub-paragraph (2) has
    effect 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) 20An application under that paragraph that is pending in relation to
    proceedings 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.

    Compensation

    14 25The 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.

    Objections in relation to apparatus

    15 The repeal of the existing code does not affect paragraphs 17 and 18 of that
    30code 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
    existing code does not affect paragraph 20 of that code as it applies in
    relation to anything whose installation was completed before the repeal
    35comes 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
    agreement under the new code in relation to the apparatus.

    (3) A subsisting agreement is not an agreement under the new code for the
    40purposes of sub-paragraph (2).

    Digital Economy BillPage 167

    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.

    Tree lopping

    18 (1) This paragraph applies where—

    (a) 5before 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
    the notice.

    (2) The notice and any counter-notice under that paragraph have effect as if
    10given under paragraph 81 of the new code.

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

    (a) a 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) 15The 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
    into force a person has given notice under paragraph 21(2) of that code
    requiring the removal of apparatus.

    (2) 20The 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) For 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
    25paragraph 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 The repeal of the existing code does not affect the operation of paragraph 23
    30of 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.

    Supplementary

    22 35Any 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 Part 15 of the new code applies in relation to notices under this Schedule as
    40it applies in relation to notices under that code.

    Digital Economy BillPage 168

    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 A person entitled to compensation by virtue of this Schedule is not entitled
    5to compensation in respect of the same matter under any provision of the
    new code.

    Section 4

    SCHEDULE 3 Electronic communications code: consequential amendments

    Part 1 10General provision

    Interpretation

    1 In this Part—

    References to the code or provisions of the code

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

    (a) 30a 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
    the table is to be read as a reference to the provision of the new code
    in the corresponding entry in column 2.

    (2) 35This 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
    (effect of repeal and re-enactment) in relation to any reference to a provision
    of the existing code not listed in the table.

    Digital Economy BillPage 169

    Existing code New code
    Paragraph 9 Part 8
    Paragraph 21 Part 6
    Paragraph 23 Part 10
    Paragraph 29 5Paragraph 17

    References to a conduit system

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

    (a) a reference to a conduit system, where it is defined by reference to
    10the 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
    establishing or maintaining).

    15Part 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
    provisions on security of tenure for business etc tenants do not apply) after
    20subsection (3) insert—

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

    (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) 25which is granted after that Schedule comes into force.”

    Opencast 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”
    30substitute “Part 10 of Schedule 3A to the Communications Act 2003 (the
    electronic 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 35In section 17 of the Land Drainage Act (Scotland) Act 1958 (application of
    paragraph 23 of the code) for “Paragraph 23 of the electronic

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