Digital Economy Bill (HL Bill 122)

authority, by the President of the Royal Institution of
Chartered Surveyors.”

Part 10 Undertaker’s works affecting electronic communications apparatus

5Introductory

65 This Part of this code makes provision about the carrying out of
undertaker’s works by undertakers or operators.

Key definitions

66 (1) In this Part of this code—

• 10“undertaker” means a person (including a local authority) of
  a description set out in any of the entries in the first column
  of the following table;

• “undertaker’s works”, in relation to an undertaker of a
  description set out in a particular entry in the first column
  15of the table, means works of the description set out in the
  corresponding entry in the second column of the table.

(2) 35In this Part of this code—

(a) a reference to undertaker’s works which interfere with a
network is a reference to any undertaker’s works which
involve, or are likely to involve, an alteration of any
electronic communications apparatus kept on, under or
40over any land for the purposes of an operator’s network;

(b) a reference to an alteration of any electronic
communications apparatus is a reference to a temporary or
permanent alteration of the apparatus.

When can an undertaker carry out non-emergency undertaker’s works?

67 (1) Before carrying out non-emergency undertaker’s works which
interfere with a network, an undertaker must give the operator
notice of the intention to carry out the works (“notice of proposed
5works”).

(2) Notice of proposed works must specify—

(a) the nature of the proposed undertaker’s works,

(b) the alteration of the electronic communications apparatus
which the works involve or are likely to involve, and

(c) 10the time and place at which the works will begin.

(3) The undertaker must not begin the proposed undertaker’s works
(including the proposed alteration of electronic communications
apparatus) until the notice period has ended.

(4) But the undertaker’s power to alter electronic communications
15apparatus (in carrying out the proposed undertaker’s works) is
subject to paragraph 68.

(5) In this paragraph—

• “non-emergency undertaker’s works” means any
  undertaker’s works which are not emergency works under
  20paragraph 71;

• “notice period” means the period of 10 days beginning with
  the day on which notice of proposed works is given.

What is the effect of the operator giving counter-notice to the undertaker?

68 (1) This paragraph applies if an undertaker gives an operator notice
25of proposed works under paragraph 67.

(2) The operator may, within the notice period, give the undertaker
notice (“counter-notice”) stating either—

(a) that the operator requires the undertaker to make any
alteration of the electronic communications apparatus that
30is necessary or expedient because of the proposed
undertaker’s works—

(i) under the supervision of the operator, and

(ii) to the satisfaction of the operator; or

(b) that the operator intends to make any alteration of the
35electronic communications apparatus that is necessary or
expedient because of the proposed undertaker’s works.

(3) In a case where counter-notice contains a statement under sub-
paragraph (2)(a), the undertaker must act in accordance with the
counter-notice when altering electronic communications
40apparatus (in carrying out the proposed undertaker’s works).

(4) But, if the operator unreasonably fails to provide the required
supervision, the undertaker must act in accordance with the
counter-notice only insofar as it requires alterations to be made to
the satisfaction of the operator.

(5) In a case where counter-notice contains a statement under sub-
paragraph (2)(b) (operator intends to make alteration), the
undertaker must not alter electronic communications apparatus
(in carrying out the proposed undertaker’s works).

(6) 5But that does not prevent the undertaker from making any
alteration of electronic communications apparatus which the
operator fails to make within a reasonable time.

(7) Expressions defined in paragraph 67 have the same meanings in
this paragraph.

10What expenses must the undertaker pay?

69 (1) This paragraph applies if an undertaker carries out any non-
emergency undertaker’s works in accordance with paragraph 67
(including in a case where counter-notice is given under
paragraph 68).

(2) 15The undertaker must pay the operator the amount of any loss or
damage sustained by the operator in consequence of any
alteration being made to electronic communications apparatus (in
carrying out the works).

(3) The undertaker must pay the operator any expenses incurred by
20the operator in, or in connection with, supervising the undertaker
when altering electronic communications apparatus (in carrying
out the works).

(4) Any amount which is not paid in accordance with this paragraph
is to be recoverable by the operator from the undertaker in any
25court of competent jurisdiction.

When can the operator alter apparatus in connection with non-emergency undertaker’s
works?

70 (1) An operator may make an alteration of electronic communications
apparatus if—

(a) 30notice of proposed works has been given,

(b) the notice period has ended, and

(c) counter-notice has been given which states (in accordance
with paragraph 68(2)(b)) that the operator intends to make
the alteration.

(2) 35If the operator makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection
with, making the alteration; and

(b) the amount of any loss or damage sustained by the
40operator in consequence of the alteration being made.

(3) Any amount which is not paid in accordance with sub-paragraph
(2) is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

(4) Expressions defined in paragraph 67 have the same meanings in
45this paragraph.

When can an undertaker carry out emergency undertaker’s works?

71 (1) An undertaker may, in carrying out emergency undertaker’s
works, make an alteration of any electronic communications
apparatus kept on, under or over any land for the purposes of an
5operator’s network.

(2) The undertaker must give the operator notice of the emergency
undertaker’s works as soon as practicable after beginning them.

(3) This paragraph does not authorise the undertaker to make an
alteration of apparatus after any failure by the undertaker to give
10notice in accordance with sub-paragraph (2).

(4) The undertaker must make the alteration to the satisfaction of the
operator.

(5) If the undertaker makes any alteration in accordance with this
paragraph, the undertaker must pay the operator—

(a) 15any expenses incurred by the operator in, or in connection
with, supervising the undertaker when making the
alteration; and

(b) the amount of any loss or damage sustained by the
operator in consequence of the alteration being made.

(6) 20Any amount which is not paid in accordance with sub-paragraph
(5) is to be recoverable by the operator from the undertaker in any
court of competent jurisdiction.

(7) In this paragraph “emergency undertaker’s works” means
undertaker’s works carried out in order to stop anything already
25occurring, or to prevent anything imminent from occurring, which
is likely to cause—

(a) danger to persons or property,

(b) interference with the exercise of any functions conferred or
imposed on the undertaker by or under any enactment, or

(c) 30substantial loss to the undertaker,

and any other works which it is reasonable (in all the
circumstances) to carry out with those works.

Offence: undertakers who do not comply with this Part of this code

72 (1) An undertaker, or an agent of an undertaker, is guilty of an offence
35if that person—

(a) makes an alteration of electronic communications
apparatus in carrying out non-emergency undertaker’s
works, and

(b) does so—

(i) 40without notice of proposed works having been
given in accordance with paragraph 67, or

(ii) (in a case where such notice is given) before the end
of the notice period under paragraph 67.

(2) An undertaker, or an agent of an undertaker, is guilty of an offence
45if that person—

(a) makes an alteration of electronic communications
apparatus in carrying out non-emergency undertaker’s
works, and

(b) unreasonably fails to comply with any reasonable
5requirement of the operator under this Part of this code
when doing so.

(3) An undertaker, or an agent of an undertaker, is guilty of an offence
if that person—

(a) makes an alteration of electronic communications
10apparatus in carrying out emergency undertaker’s works,
and

(b) does so without notice of emergency undertaker’s works
having been given in accordance with paragraph 71.

(4) A person guilty of an offence under this paragraph is liable on
15summary conviction to—

(a) a fine not exceeding level 4 on the standard scale, if the
service provided by the operator’s network is interrupted
by the works or failure, or

(b) a fine not exceeding level 3 on the standard scale, if that
20service is not interrupted.

(5) This paragraph does not apply to a Northern Ireland department.

Part 11 Overhead apparatus

Introductory

73 25This Part of this code—

(a) confers a power on operators to install and keep certain
overhead apparatus, and

(b) imposes a duty on operators to affix notices to certain
overhead apparatus.

30Power to fly lines

74 (1) This paragraph applies where any electronic communications
apparatus is kept on or over any land for the purposes of an
operator’s network.

(2) The operator has the right, for the statutory purposes, to install
35and keep lines which—

(a) pass over other land adjacent to, or in the vicinity of, the
land on or over which the apparatus is kept,

(b) are connected to that apparatus, and

(c) are not, at any point where they pass over the other land,
40less than three metres above the ground or within two
metres of any building over which they pass.

(3) Sub-paragraph (2) does not authorise the installation or keeping
on or over any land of—

(a) any electronic communications apparatus used to support,
carry or suspend a line installed under sub-paragraph (2),
or

(b) any line which, as a result of its position, interferes with the
5carrying on of any business carried on on that land.

(4) In this paragraph “business” includes a trade, profession or
employment and includes any activity carried on by a body of
persons (whether corporate or unincorporate).

Duty to attach notices to overhead apparatus

75 (1) 10This paragraph applies where—

(a) an operator has, for the purposes of the operator’s
network, installed any electronic communications
apparatus, and

(b) the whole or part of the apparatus is at a height of three
15metres or more above the ground.

(2) The operator must, before the end of the period of three days
beginning with the day after that on which the installation is
completed, in a secure and durable manner attach a notice—

(a) to every major item of apparatus installed, or

(b) 20if no major item of apparatus is installed, to the nearest
major item of electronic communications apparatus to
which the apparatus that is installed is directly or
indirectly connected.

(3) A notice attached under sub-paragraph (1) above—

(a) 25must be attached in a position where it is reasonably
legible, and

(b) must give the name of the operator and an address in the
United Kingdom at which any notice of objection may be
given under paragraph 77(5) in respect of the apparatus in
30question.

(4) Any person giving such a notice at that address in respect of that
apparatus is to be treated as having given that address for the
purposes of paragraph 91(2).

(5) An operator who breaches the requirements of this paragraph is
35guilty of an offence and liable on summary conviction to a fine not
exceeding level 2 on the standard scale.

(6) In any proceedings for an offence under this paragraph it is a
defence for the person charged to prove that the person took all
reasonable steps and exercised all due diligence to avoid
40committing the offence.

Part 12 Rights to object to certain apparatus

Introductory

76 This Part of this code makes provision conferring rights to object
5to certain kinds of apparatus, and makes provision about—

(a) the cases in which and persons by whom a right can be
exercised, and

(b) the power and procedures of the court if an objection is
made.

10When and by whom can a right to object be exercised?

77 (1) A right to object under this Part of this code is available where,
pursuant to the right in paragraph 62, an operator keeps electronic
communications apparatus installed on, under or over tidal water
or lands within the meaning of Part 9 of this code.

(2) 15In that case a person has a right to object under this Part of this
code if the person—

(a) is an occupier of, or has an interest in, the tidal water or
lands,

(b) is not bound by a code right enabling the operator to keep
20the apparatus installed on, under or over the tidal water or
lands, and

(c) is not a person with the benefit of a Crown interest in the
tidal water or lands.

(3) A right to object under this Part of this code is available where an
25operator keeps a line installed over land pursuant to the right in
paragraph 74.

(4) In that case a person has a right to object under this Part of this
code if the person—

(a) is an occupier of, or has an interest in, the land, and

(b) 30is not bound by a code right enabling the operator to keep
the apparatus installed over the land.

(5) A right to object under this Part of this code is available where—

(a) electronic communications apparatus is kept on or over
land for the purposes of an operator’s network, and

(b) 35the whole or any part of that apparatus is at a height of
three metres or more above the ground.

(6) In that case a person has a right to object under this Part of this
code if—

(a) the person is an occupier of, or has an interest in, any
40neighbouring land, and

(b) because of the nearness of the neighbouring land to the
land on or over which the apparatus is kept—

(i) the enjoyment of the neighbouring land is capable
of being prejudiced by the apparatus, or

(ii) any interest in that land is capable of being
prejudiced by the apparatus.

(7) There is no right to object under this Part of this code in respect of
electronic communications apparatus if the apparatus—

(a) 5replaces any electronic communications apparatus which
is not substantially different from the new apparatus, and

(b) is not in a significantly different position.

How may a right to object be exercised?

78 (1) A person with a right to object under this Part (“the objector”) may
10exercise the right by giving a notice to the operator.

(2) The right to object that the person has, and the procedure that
applies to that right, depends on whether—

(a) the notice is given before the end of the period of 12
months beginning with the date on which installation of
15the apparatus was completed (see paragraph 79), or

(b) the notice is given after the end of that period (see
paragraph 80).

What is the procedure if the objection is made within 12 months of installation?

79 (1) This paragraph applies if the notice is given before the end of the
20period of 12 months beginning with the date on which installation
of the apparatus was completed.

(2) At any time after the end of the period of two months beginning
with the date on which the notice is given, but before the end of
the period of four months beginning with that date, the objector
25may apply to the court to have the objection upheld.

(3) The court must uphold the objection if the following conditions
are met.

(4) The first condition is that the apparatus appears materially to
prejudice the objector’s enjoyment of, or interest in, the land by
30reference to which the objection is made.

(5) The second condition is that the court is not satisfied that the only
possible alterations of the apparatus will—

(a) substantially increase the cost or diminish the quality of
the service provided by the operator’s network to persons
35who have, or may in future have, access to it,

(b) involve the operator in substantial additional expenditure
(disregarding any expenditure caused solely by the fact
that any proposed alteration was not adopted originally
or, as the case may be, that the apparatus has been
40unnecessarily installed), or

(c) give to any person a case at least as good as the objector has
to have an objection under this paragraph upheld.

(6) If the court upholds an objection under this paragraph it may by
order do any of the following—

(a) direct the alteration of the apparatus to which the objection
relates;

(b) authorise the installation (instead of the apparatus to
which the objection relates), in a manner and position
5specified in the order, of any apparatus specified in the
order;

(c) direct that no objection may be made under this paragraph
in respect of any apparatus the installation of which is
authorised by the court.

(7) 10Where an objector has both given a notice under paragraph 78 and
applied for compensation under any of the other provisions of this
code—

(a) the court may give such directions as it thinks fit for
ensuring that no compensation is paid until any
15proceedings under this paragraph have been disposed of,
and

(b) if the court makes an order under this paragraph, it may
provide in that order for some or all of the compensation
otherwise payable under this code to the objector not to be
20so payable, or, if the case so requires, for some or all of any
compensation paid under this code to the objector to be
repaid to the operator.

(8) For the purposes of sub-paragraph (5)(c), the court has the power
on an application under this paragraph to give the objector
25directions for bringing the application to the notice of such other
interested persons as it thinks fit.

(9) This paragraph is subject to paragraph 81.

What is the procedure if the objection is made later than 12 months after installation?

80 (1) This paragraph applies if the notice is given after the end of the
30period of 12 months beginning with the date on which installation
of the apparatus was completed.

(2) At any time after the end of the period of two months beginning
with the date on which the notice is given, but before the end of
the period of four months beginning with that date, the objector
35may apply to the court to have the objection upheld.

(3) The court may uphold the objection only if it is satisfied that—

(a) the alteration is necessary to enable the objector to carry
out a proposed improvement of the land by reference to
which the objection is made, and

(b) 40the alteration will not substantially interfere with any
service which is or is likely to be provided using the
operator’s network.

(4) If the court upholds an objection under this paragraph it may by
order direct the alteration of the apparatus to which the objection
45relates.

(5) An order under this paragraph may provide for the alteration to
be carried out with such modifications, on such terms and subject
to such conditions as the court thinks fit.

(6) But the court must not include any such modifications, terms or
5conditions in its order without the consent of the objector, and if
such consent is not given may refuse to make an order under this
paragraph.

(7) An order made under this paragraph must, unless the court
otherwise thinks fit, require the objector to reimburse the operator
10in respect of any expenses which the operator incurs in or in
connection with the execution of any works in compliance with
the order.

(8) This paragraph is subject to paragraph 81.

(9) In this paragraph “improvement” includes development and
15change of use.

What limitations are there on the court’s powers under paragraph 79 or 80?

81 (1) This paragraph applies where the court is considering making—

(a) an order under paragraph 79 directing the alteration of any
apparatus or authorising the installation of any apparatus,
20or

(b) an order under paragraph 80 directing the alteration of any
apparatus.

(2) The court must not make the order unless it is satisfied—

(a) that the operator has all such rights as it appears to the
25court appropriate that the operator should have for the
purpose of making the alteration or, as the case may be,
installing the apparatus, or

(b) that—

(i) the operator would have all those rights if the
30court, on an application under paragraph 20,
imposed an agreement on the operator and another
person, and

(ii) it would be appropriate for the court, on such an
application, to impose such an agreement.

(3) 35For the purposes of avoiding the need for the agreement of any
person to the alteration or installation of any apparatus, the court
has the same powers as it would have if an application had been
duly made under paragraph 20 above for an order imposing such
an agreement.

(4) 40For the purposes of this paragraph, the court has the power on an
application under paragraph 79 or 80 to give the objector
directions for bringing the application to the notice of such other
interested persons as it thinks fit.