Digital Economy Bill (HL Bill 122)

(4) Sub-paragraph (5) applies if, after the end of the period of 6
months beginning with the day on which the notice is given, the
operator and the site provider have not reached agreement on the
proposals in the notice.

(5) 5Where this paragraph applies, the operator or the site provider
may apply to the court for the court to make an order under
paragraph 34.

What orders may a court make on an application under paragraph 32 or 33?

34 (1) This paragraph sets out the orders that the court may make on an
10application under paragraph 32(1)(b) or 33(5).

(2) The court may order that the operator may continue to exercise the
existing code right in accordance with the existing code agreement
for such period as may be specified in the order (so that the code
agreement has effect accordingly).

(3) 15The court may order the modification of the terms of the code
agreement relating to the existing code right.

(4) Where under the code agreement more than one code right is
conferred by or otherwise binds the site provider, the court may
order the modification of the terms of the code agreement so that
20it no longer provides for an existing code right to be conferred by
or otherwise bind the site provider.

(5) The court may order the terms of the code agreement relating to
the existing code right to be modified so that—

(a) it confers an additional code right on the operator, or

(b) 25it provides that the site provider is otherwise bound by an
additional code right.

(6) The court may order the termination of the code agreement
relating to the existing code right and order the operator and the
site provider to enter into a new agreement which—

(a) 30confers a code right on the operator, or

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

(7) The existing code agreement continues until the new agreement
takes effect.

(8) This code applies to the new agreement as if it were an agreement
35under Part 2 of this code.

(9) The terms conferring or providing for an additional code right
under sub-paragraph (5), and the terms of a new agreement under
sub-paragraph (6), are to be such as are agreed between the
operator and the site provider.

(10) 40If the operator and the site provider are unable to agree on the
terms, the court must on an application by either party make an
order specifying those terms.

(11) Paragraphs 23(2) to (8), 24, 25 and 84 apply—

(a) to an order under sub-paragraph (3), (4) or (5), so far as it
45modifies or specifies the terms of the agreement, and

(b) to an order under sub-paragraph (10)

as they apply to an order under paragraph 20.

(12) In the case of an order under sub-paragraph (10) the court must
also have regard to the terms of the existing code agreement.

(13) 5In determining which order to make under this paragraph, the
court must have regard to all the circumstances of the case, and in
particular to—

(a) the operator’s business and technical needs,

(b) the use that the site provider is making of the land to which
10the existing code agreement relates,

(c) any duties imposed on the site provider by an enactment,
and

(d) the amount of consideration payable by the operator to the
site provider under the existing code agreement.

(14) 15Where the court makes an order under this paragraph, it may also
order the operator to pay the site provider the amount (if any) by
which A exceeds B, where—

(a) A is the amount of consideration that would have been
payable by the operator to the site provider for the relevant
20period if that amount had been assessed on the same basis
as the consideration payable as the result of the order, and

(b) B is the amount of consideration payable by the operator to
the site provider for the relevant period.

(15) In sub-paragraph (14) the relevant period is the period (if any)
25that—

(a) begins on the date on which, apart from the operation of
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 from which, apart from that
30paragraph, the code agreement could have been brought
to an end by the site provider, and

(b) ends on the date on which the order is made.

What arrangements for payment can be made pending determination of the
application?

35 (1) 35This paragraph applies where—

(a) a code right continues to be exercisable under paragraph
30 after the time at which, apart from the operation of that
paragraph, the code right would have ceased to be
exercisable or to bind the site provider or from which,
40apart from that paragraph, the code agreement relating to
the right could have been brought to an end by the site
provider, and

(b) the operator or the site provider has applied to the court
for an order under paragraph 32(1)(b) or 33(5).

(2) 45The site provider may—

(a) agree with the operator that, until the application has been
finally determined, the site provider will continue to
receive the payments of consideration from the operator to

which the site provider is entitled under the agreement
relating to the existing code right,

(b) agree with the operator that, until that time, the site
provider will receive different payments of consideration
5under that agreement, or

(c) apply to the court for the court to determine the payments
of consideration to be made by the operator to the site
provider under that agreement until that time.

(3) The court must determine the payments under sub-paragraph
10(2)(c) on the basis set out in paragraph 24 (calculation of
consideration).

Part 6 Rights to require removal of electronic communications apparatus

Introductory

36 15This Part of this code makes provision about—

(a) the cases in which a person has the right to require the
removal of electronic communications apparatus or the
restoration of land,

(b) the means by which a person can discover whether
20apparatus is on land pursuant to a code right, and

(c) the means by which a right to require removal of
apparatus or restoration of land can be enforced.

When does a landowner have the right to require removal of electronic communications
apparatus?

37 (1) 25A person with an interest in land (a “landowner”) has the right to
require the removal of electronic communications apparatus on,
under or over the land if (and only if) one or more of the following
conditions are met.

(2) The first condition is that the landowner has never since the
30coming into force of this code been bound by a code right entitling
an operator to keep the apparatus on, under or over the land.
This is subject to sub-paragraph (4).

(3) The second condition is that a code right entitling an operator to
keep the apparatus on, under or over the land has come to an end
35or has ceased to bind the landowner—

(a) as mentioned in paragraph 26(7) and (8),

(b) as the result of paragraph 32(1), or

(c) as the result of an order under paragraph 32(4) or 34(4) or
(6), or

(d) 40 where the right was granted by a lease to which Part 5 of
this code does not apply.

This is subject to sub-paragraph (4).

(4) The landowner does not meet the first or second condition if—

(a) the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling
an operator to keep the apparatus on, under or over
the land, or

(ii) is otherwise bound by such a right, and

(b) 5that code right was not conferred in breach of a covenant
enforceable by the landowner.

(5) In the application of sub-paragraph (4)(b) to Scotland the reference
to a covenant enforceable by the landowner is to be read as a
reference to a contractual term which is so enforceable.

(6) 10The third condition is that—

(a) an operator has the benefit of a code right entitling the
operator to keep the apparatus on, under or over the land,
but

(b) the apparatus is not, or is no longer, used for the purposes
15of the operator’s network, and

(c) there is no reasonable likelihood that the apparatus will be
used for that purpose.

(7) The fourth condition is that—

(a) this code has ceased to apply to a person so that the person
20is no longer entitled under this code to keep the apparatus
on, under or over the land,

(b) the retention of the apparatus on, under or over the land is
not authorised by a scheme contained in an order under
section 117, and

(c) 25there is no other person with a right conferred by or under
this code to keep the apparatus on, under or over the land.

(8) The fifth condition is that—

(a) the apparatus was kept on, under or over the land
pursuant to—

(i) 30a transport land right (see Part 7), or

(ii) a street work right (see Part 8),

(b) that right has ceased to be exercisable in relation to the
land by virtue of paragraph 54(9), and

(c) there is no other person with a right conferred by or under
35this code to keep the apparatus on, under or over the land.

(9) This paragraph does not affect rights to require the removal of
apparatus under another enactment (see paragraph 41).

When does a landowner or occupier of neighbouring land have the right to require
removal of electronic communications apparatus?

38 (1) 40A landowner or occupier of any land (“neighbouring land”) has
the right to require the removal of electronic communications
apparatus on, under or over other land if both of the following
conditions are met.

(2) The first condition is that the exercise by an operator in relation to
45the apparatus of a right mentioned in paragraph 13(1) interferes
with or obstructs a means of access to or from the neighbouring
land.

(3) The second condition is that the landowner or occupier of the
neighbouring land is not bound by a code right within paragraph
3(h) entitling an operator to cause the interference or obstruction.

(4) A landowner of neighbouring land who is not the occupier of the
5land does not meet the second condition if—

(a) the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling
an operator to cause the interference or obstruction,
or

(ii) 10is otherwise bound by such a right, and

(b) that code right was not conferred in breach of a covenant
enforceable by the landowner.

(5) In the application of sub-paragraph (4)(b) to Scotland the reference
to a covenant enforceable by the landowner is to be read as a
15reference to a contractual term which is so enforceable.

How does a landowner or occupier find out whether apparatus is on land pursuant to
a code right?

39 (1) A landowner may by notice require an operator to disclose
whether—

(a) 20the operator owns electronic communications apparatus
on, under or over land in which the landowner has an
interest or uses such apparatus for the purposes of the
operator’s network, or

(b) the operator has the benefit of a code right entitling the
25operator to keep electronic communications apparatus on,
under or over land in which the landowner has an interest.

(2) A landowner or occupier of neighbouring land may by notice
require an operator to disclose whether—

(a) the operator owns electronic communications apparatus
30on, under or over land that forms (or, but for the
apparatus, would form) a means of access to the
neighbouring land, or uses such apparatus for the
purposes of the operator’s network, or

(b) the operator has the benefit of a code right entitling the
35operator to keep electronic communications apparatus on,
under or over land that forms (or, but for the apparatus,
would form) a means of access to the neighbouring land.

(3) The notice must comply with paragraph 89 (notices given by
persons other than operators).

(4) 40Sub-paragraph (5) applies if—

(a) the operator does not, before the end of the period of three
months beginning with the date on which the notice under
sub-paragraph (1) or (2) was given, give a notice to the
landowner or occupier that—

(i) 45complies with paragraph 88 (notices given by
operators), and

(ii) discloses the information sought by the landowner
or occupier,

(b) the landowner or occupier takes action under paragraph
40 to enforce the removal of the apparatus, and

(c) it is subsequently established that—

(i) the operator owns the apparatus or uses it for the
5purposes of the operator’s network, and

(ii) the operator has the benefit of a code right entitling
the operator to keep the apparatus on, under or
over the land.

(5) The operator must nevertheless bear the costs of any action taken
10by the landowner or occupier under paragraph 40 to enforce the
removal of the apparatus.

How does a landowner or occupier enforce removal of apparatus?

40 (1) The right of a landowner or occupier to require the removal of
electronic communications apparatus on, under or over land,
15under paragraph 37 or 38, is exercisable only in accordance with
this paragraph.

(2) The landowner or occupier may give a notice to the operator
whose apparatus it is requiring the operator—

(a) to remove the apparatus, and

(b) 20to restore the land to its condition before the apparatus
was placed on, under or over the land.

(3) The notice must—

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

(b) 25specify the period within which the operator must
complete the works.

(4) The period specified under sub-paragraph (3) must be a
reasonable one.

(5) Sub-paragraph (6) applies if, within the period of 28 days
30beginning with the day on which the notice was given, the
landowner or occupier and the operator do not reach agreement
on any of the following matters—

(a) that the operator will remove the apparatus;

(b) that the operator will restore the land to its condition
35before the apparatus was placed on, under or over the
land;

(c) the time at which or period within which the apparatus
will be removed;

(d) the time at which or period within which the land will be
40restored.

(6) The landowner or occupier may make an application to the court
for—

(a) an order under paragraph 44(1) (order requiring operator
to remove apparatus etc), or

(b) 45an order under paragraph 44(3) (order enabling
landowner to sell apparatus etc).

(7) If the court makes an order under paragraph 44(1), but the
operator does not comply with the agreement imposed on the
operator and the landowner or occupier by virtue of paragraph
44(7), the landowner or occupier may make an application to the
5court for an order under paragraph 44(3).

(8) On an application under sub-paragraph (6) or (7) the court may
not make an order in relation to apparatus if an application under
paragraph 20(3) has been made in relation to the apparatus and
has not been determined.

10How are other rights to require removal of apparatus enforced?

41 (1) The right of a person (a “third party”) under an enactment other
than this code, or otherwise than under an enactment, to require
the removal of electronic communications apparatus on, under or
over land is exercisable only in accordance with this paragraph.

(2) 15The third party may give a notice to the operator whose apparatus
it is, requiring the operator—

(a) to remove the apparatus, and

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

(3) 20The notice must—

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

(b) specify the period within which the operator must
complete the works.

(4) 25The period specified under sub-paragraph (3) must be a
reasonable one.

(5) Within the period of 28 days beginning with the day on which
notice under sub-paragraph (2) is given, the operator may give the
third party notice (“counter-notice”)—

(a) 30stating that the third party is not entitled to require the
removal of the apparatus, or

(b) specifying the steps which the operator proposes to take
for the purpose of securing a right as against the third
party to keep the apparatus on the land.

(6) 35If the operator does not give counter-notice within that period, the
third party is entitled to enforce the removal of the apparatus.

(7) If the operator gives the third party counter-notice within that
period, the third party may enforce the removal of the apparatus
only in pursuance of an order of the court that the third party is
40entitled to enforce the removal of the apparatus.

(8) If the counter-notice specifies steps under paragraph (5)(b), the
court may make an order under sub-paragraph (7) only if it is
satisfied—

(a) that the operator is not intending to take those steps or is
45being unreasonably dilatory in taking them; or

(b) that taking those steps has not secured, or will not secure,
for the operator as against the third party any right to keep
the apparatus installed on, under or over the land or to re-
install it if it is removed.

(9) 5Where the third party is entitled to enforce the removal of the
apparatus, under sub-paragraph (6) or under an order under sub-
paragraph (7), the third party may make an application to the
court for—

(a) an order under paragraph 44(1) (order requiring operator
10to remove apparatus etc), or

(b) an order under paragraph 44(3) (order enabling third party
to sell apparatus etc).

(10) If the court makes an order under paragraph 44(1), but the
operator does not comply with the agreement imposed on the
15operator and the third party by virtue of paragraph 44(7), the third
party may make an application to the court for an order under
paragraph 44(3).

(11) An order made on an application under this paragraph need not
include provision within paragraph 44(1)(b) or (3)(d) unless the
20court thinks it appropriate.

(12) Sub-paragraph (9) is without prejudice to any other method
available to the third party for enforcing the removal of the
apparatus.

How does paragraph 40 apply if a person is entitled to require apparatus to be altered
25in consequence of street works?

42 (1) This paragraph applies where the third party’s right in relation to
which paragraph 41 applies is a right to require the alteration of
the apparatus in consequence of the stopping up, closure, change
or diversion of a street or road or the extinguishment or alteration
30of a public right of way.

(2) The removal of the apparatus in pursuance of paragraph 41
constitutes compliance with a requirement to make any other
alteration.

(3) A counter-notice under paragraph 41(5) may state (in addition to,
35or instead of, any of the matters mentioned in paragraph 41(5)(b))
that the operator requires the third party to reimburse the operator
in respect of any expenses incurred by the operator in or in
connection with the making of any alteration in compliance with
the requirements of the third party.

(4) 40An order made under paragraph 41 on an application by the third
party in respect of a counter-notice containing a statement under
sub-paragraph (3) must, unless the court otherwise thinks fit,
require the third party to reimburse the operator in respect of the
expenses referred to in the statement.

(5) 45Paragraph 44(3)(b) to (e) do not apply.

(6) In this paragraph—

• “road” means a road in Scotland;

Digital Economy BillPage 158

• “street” means a street in England and Wales or Northern
  Ireland.”

When can a separate application for restoration of land be made?

43 (1) This paragraph applies if—

(a) 5the condition of the land has been affected by the exercise
of a code right, and

(b) restoration of the land to its condition before the code right
was exercised does not involve the removal of electronic
communications apparatus from any land.

(2) 10The occupier of the land, the owner of the freehold estate in the
land or the lessee of the land (“the relevant person”) has the right
to require the operator to restore the land if the relevant person is
not for the time being bound by the code right.
This is subject to sub-paragraph (3).

(3) 15The relevant person does not have that right if—

(a) the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling
the operator to affect the condition of the land in
the same way as the right mentioned in sub-
20paragraph (1), or

(ii) is otherwise bound by such a right, and

(b) that code right was not conferred in breach of a covenant
enforceable by the relevant person.

(4) In the application of sub-paragraph (3)(b) to Scotland the reference
25to a covenant enforceable by the relevant person is to be read as a
reference to a contractual term which is so enforceable.

(5) A person who has the right conferred by this paragraph may give
a notice to the operator requiring the operator to restore the land
to its condition before the code right was exercised.

(6) 30The notice must—

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

(b) specify the period within which the operator must
complete the works.

(7) 35The period specified under sub-paragraph (6) must be a
reasonable one.

(8) Sub-paragraph (9) applies if, within the period of 28 days
beginning with the day on which the notice was given, the
landowner and the operator do not reach agreement on any of the
40following matters—

(a) that the operator will restore the land to its condition
before the code right was exercised;

(b) the time at which or period within which the land will be
restored.

(9) 45The landowner may make an application to the court for—

(a) an order under paragraph 44(2) (order requiring operator
to restore land), or

(b) an order under paragraph 44(4) (order enabling
landowner to recover cost of restoring land).

(10) 5If the court makes an order under paragraph 44(2), but the
operator does not comply with the agreement imposed on the
operator and the landowner by virtue of paragraph 44(7), the
landowner may make an application to the court for an order
under paragraph 44(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 40 to 43?

44 (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
4040 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 84 makes further provision about compensation under
sub-paragraph (5).