Digital Economy Bill (HL Bill 122)

paragraph 20(3)(b) does not apply) if the court thinks that the
order should be made as a matter of urgency.

(6) Paragraphs 23, 24 and 25 apply by virtue of sub-paragraph (4) as
if—

(a) 5references to the relevant person were to the person
mentioned in sub-paragraph (1) of this paragraph, and

(b) the duty in paragraph 23 to include terms as to the
payment of consideration to that person in an agreement
were a power to do so.

(7) 10Sub-paragraph (8) applies where, in the course of the proceedings
under paragraph 20, it is shown that a person with an interest in
the land was entitled to require the removal of the apparatus
immediately after it was installed.

(8) The court must, in determining for the purposes of paragraph 20
15whether the apparatus should continue to be kept on, under or
over the land, disregard the fact that the apparatus has already
been installed there.

Part 5 Termination and modification of agreements

20Introductory

28 This Part of this code makes provision about—

(a) the continuation of code rights after the time at which they
cease to be exercisable under an agreement,

(b) the procedure for bringing an agreement to an end,

(c) 25the procedure for changing an agreement relating to code
rights, and

(d) the arrangements for the making of payments under an
agreement whilst disputes under this Part are resolved.

Application of this Part

29 (1) 30This Part of this code applies to an agreement under Part 2 of this
code, subject to sub-paragraphs (2) to (4).

(2) This Part of this code does not apply to a lease of land in England
and Wales if—

(a) its primary purpose is not to grant code rights, and

(b) 35it is a lease to which Part 2 of the Landlord and Tenant Act
1954 (security of tenure for business, professional and
other tenants) applies.

(3) In determining whether a lease is one to which Part 2 of the
Landlord and Tenant Act 1954 applies, any agreement under
40section 38A (agreements to exclude provisions of Part 2) of that
Act is to be disregarded.

(4) This Part of this code does not apply to a lease of land in Northern
Ireland if—

(a) its primary purpose is not to grant code rights, and

(b) it is a lease to which the Business Tenancies (Northern
Ireland) Order 1996 (SI 1996/725 (NI 5)) applies.

(5) An agreement to which this Part of this code applies is referred to
in this code as a “code agreement”.

5Continuation of code rights

30 (1) Sub-paragraph (2) applies if—

(a) a code right is conferred by, or is otherwise binding on, a
person (the “site provider”) as the result of a code
agreement, and

(b) 10under the terms of the agreement—

(i) the right ceases to be exercisable or the site
provider ceases to be bound by it, or

(ii) the site provider may bring the code agreement to
an end so far as it relates to that right.

(2) 15Where this sub-paragraph applies the code agreement continues
so that—

(a) the operator may continue to exercise that right, and

(b) the site provider continues to be bound by the right.

(3) Sub-paragraph (2) does not apply to a code right which is
20conferred by, or is otherwise binding on, a person by virtue of an
order under paragraph 26 (interim code rights) or 27 (temporary
code rights).

(4) Sub-paragraph (2) is subject to the following provisions of this
Part of this code.

25How may a person bring a code agreement to an end?

31 (1) A site provider who is a party to a code agreement may bring the
agreement to an end by giving a notice in accordance with this
paragraph to the operator who is a party to the agreement.

(2) The notice must—

(a) 30comply with paragraph 89 (notices given by persons other
than operators),

(b) specify the date on which the site provider proposes the
code agreement should come to an end, and

(c) state the ground on which the site provider proposes to
35bring the code agreement to an end.

(3) The date specified under sub-paragraph (2)(b) must fall—

(a) after the end of the period of 18 months beginning with the
day on which the notice is given, and

(b) after the time at which, apart from paragraph 30, the code
40right to which the agreement relates would have ceased to
be exercisable or to bind the site provider or at a time
when, apart from that paragraph, the code agreement
could have been brought to an end by the site provider.

(4) The ground stated under sub-paragraph (2)(c) must be one of the
45following—

(a) that the code agreement ought to come to an end as a result
of substantial breaches by the operator of its obligations
under the agreement;

(b) that the code agreement ought to come to an end because
5of persistent delays by the operator in making payments to
the site provider under the agreement;

(c) that the site provider intends to redevelop all or part of the
land to which the code agreement relates, or any
neighbouring land, and could not reasonably do so unless
10the code agreement comes to an end;

(d) that the operator is not entitled to the code agreement
because the test under paragraph 21 for the imposition of
the agreement on the site provider is not met.

What is the effect of a notice under paragraph 31?

32 (1) 15Where a site provider gives a notice under paragraph 31, the code
agreement to which it relates comes to an end in accordance with
the notice unless—

(a) within the period of three months beginning with the day
on which the notice is given, the operator gives the site
20provider a counter-notice in accordance with sub-
paragraph (3), and

(b) within the period of three months beginning with the day
on which the counter-notice is given, the operator applies
to the court for an order under paragraph 34.

(2) 25Sub-paragraph (1) does not apply if the operator and the site
provider agree to the continuation of the code agreement.

(3) The counter-notice must state—

(a) that the operator does not want the existing code
agreement to come to an end,

(b) 30that the operator wants the site provider to agree to confer
or be otherwise bound by the existing code right on new
terms, or

(c) that the operator wants the site provider to agree to confer
or be otherwise bound by a new code right in place of the
35existing code right.

(4) If, on an application under sub-paragraph (1)(b), the court decides
that the site provider has established any of the grounds stated in
the site provider’s notice under paragraph 31, the court must
order that the code agreement comes to an end in accordance with
40the order.

(5) Otherwise the court must make one of the orders specified in
paragraph 34.

How may a party to a code agreement require a change to the terms of an agreement
which has expired?

33 (1) 45An operator or site provider who is a party to a code agreement by
which a code right is conferred by or otherwise binds the site

provider may, by notice in accordance with this paragraph,
require the other party to the agreement to agree that—

(a) the code agreement should have effect with modified
terms,

(b) 5where under the code agreement more than one code right
is conferred by or otherwise binds the site provider, that
the agreement should no longer provide for an existing
code right to be conferred by or otherwise bind the site
provider,

(c) 10the code agreement should—

(i) confer an additional code right on the operator, or

(ii) provide that the site provider is otherwise bound
by an additional code right, or

(d) the existing code agreement should be terminated and a
15new agreement should have effect between the parties
which—

(i) confers a code right on the operator, or

(ii) provides for a code right to bind the site provider.

(2) The notice must—

(a) 20comply with paragraph 88 or 89, according to whether the
notice is given by an operator or a site provider,

(b) specify—

(i) the day from which it is proposed that the modified
terms should have effect,

(ii) 25the day from which the agreement should no
longer provide for the code right to be conferred by
or otherwise bind the site provider,

(iii) the day from which it is proposed that the
additional code right should be conferred by or
30otherwise bind the site provider, or

(iv) the day on which it is proposed the existing code
agreement should be terminated and from which a
new agreement should have effect,

(as the case may be), and

(c) 35set out details of—

(i) the proposed modified terms,

(ii) the code right it is proposed should no longer be
conferred by or otherwise bind the site provider,

(iii) the proposed additional code right, or

(iv) 40the proposed terms of the new agreement,

(as the case may be).

(3) The day specified under sub-paragraph (2)(b) must fall—

(a) after the end of the period of 6 months beginning with the
day on which the notice is given, and

(b) 45after the time at which, apart from paragraph 30, the code
right to which the existing code agreement relates would
have ceased to be exercisable or to bind the site provider or
at a time when, apart from that paragraph, the code
agreement could have been brought to an end by the site
50provider.