Digital Economy Bill (HL Bill 122)

Part 13 Rights to lop trees

Rights to lop trees

82 (1) This paragraph applies where—

(a) 5a tree or other vegetation overhangs a street in England
and Wales or Northern Ireland or a road in Scotland, and

(b) the tree or vegetation—

(i) obstructs, or will or may obstruct, relevant
electronic communications apparatus, or

(ii) 10interferes with, or will or may interfere with, such
apparatus.

(2) In sub-paragraph (1) “relevant electronic communications
apparatus” means electronic communications apparatus which—

(a) is installed, or about to be installed, on land, and

(b) 15is used, or to be used, for the purposes of an operator’s
network.

(3) The operator may, by notice to the occupier of the land on which
the tree or vegetation is growing, require the tree to be lopped or
the vegetation to be cut back to prevent the obstruction or
20interference.

(4) If, within the period of 28 days beginning with the day on which
the notice is given, the occupier of the land on which the tree is
growing gives the operator a counter-notice objecting to the
lopping of the tree or cutting back of the vegetation, the notice has
25effect only if confirmed by an order of the court.

(5) Sub-paragraph (6) applies if at any time a notice under sub-
paragraph (3) has not been complied with and—

(a) the period of 28 days beginning with the day on which the
notice was given has expired without a counter-notice
30having been given, or

(b) an order of the court confirming the notice has come into
force.

(6) The operator may cause the tree to be lopped or the vegetation to
be cut back.

(7) 35Where the operator lops a tree or cuts back vegetation in exercise
of the power in sub-paragraph (6) the operator must do so in a
husband-like manner and in such a way as to cause the minimum
damage to the tree or vegetation.

(8) Sub-paragraph (9) applies where—

(a) 40a notice under sub-paragraph (3) is complied with (either
without a counter-notice having been given or after the
notice has been confirmed), or

(b) the operator exercises the power in sub-paragraph (6).

(9) The court must, on an application made by a person who has
45sustained loss or damage in consequence of the lopping of the tree

or cutting back of the vegetation or who has incurred expenses in
complying with the notice, order the operator to pay that person
such compensation in respect of the loss or damage as it thinks fit.

Part 14 5Compensation under the code

Introductory

83 This Part of this code makes provision about compensation under
this code.

Compensation where agreement imposed or apparatus removed

84 (1) 10This paragraph applies to the following powers of the court to
order an operator to pay compensation to a person—

(a) the power in paragraph 25(1) (compensation where order
made imposing agreement on person);

(b) the power in paragraph 44(5) (compensation in relation to
15removal of the apparatus from the land).

(2) Depending on the circumstances, the power of the court to order
the payment of compensation for loss or damage includes power
to order payment for—

(a) expenses (including reasonable legal and valuation
20expenses, subject to the provisions of any enactment about
the powers of the court by whom the order for
compensation is made to award costs or, in Scotland,
expenses),

(b) diminution in the value of the land, and

(c) 25costs of reinstatement.

(3) For the purposes of assessing such compensation for diminution
in the value of land, the following provisions apply with any
necessary modifications as they apply for the purposes of
assessing compensation for the compulsory purchase of any
30interest in land—

(a) in relation to England and Wales, rules (2) to (4) set out in
section 5 of the Land Compensation Act 1961;

(b) in relation to Scotland, rules (2) to (4) set out in section 12
of the Land Compensation (Scotland) Act 1963;

(c) 35in relation to Northern Ireland, rules (2) to (4) set out in
Article 6(1) of the Land Compensation (Northern Ireland)
Order 1982 (SI 1982/712 (NI 9)).

(4) In the application of this paragraph to England and Wales, section
10(1) to (3) of the Land Compensation Act 1973 (compensation in
40respect of mortgages, trusts of land and settled land) applies in
relation to such compensation for diminution in the value of land
as it applies in relation to compensation under Part 1 of that Act.

(5) In the application of this paragraph to Scotland, section 10(1) and
(2) of the Land Compensation (Scotland) Act 1973 (compensation
45in respect of restricted interests in land) applies in relation to such

compensation for diminution in the value of land as it applies in
relation to compensation under Part 1 of that Act.

(6) In the application of this paragraph to Northern Ireland, Article
13(1) to (3) of the Land Acquisition and Compensation (Northern
5Ireland) Order 1973 (SI 1973/1896 (NI 21)) (compensation in
respect of mortgages, trusts for sale and settlements) applies in
relation to such compensation for diminution in the value of land
as it applies in relation to compensation under Part II of that
Order.

(7) 10Where a person has a claim for compensation to which this
paragraph applies and a claim for compensation under any other
provision of this code in respect of the same loss, the
compensation payable to that person must not exceed the amount
of that person’s loss.

15Compensation for injurious affection to neighbouring land etc

85 (1) This paragraph applies where a right conferred by or in
accordance with any provision of Parts 2 to 9 of this code is
exercised by an operator.

(2) In the application of this paragraph to England and Wales,
20compensation is payable by the operator under section 10 of the
Compulsory Purchase Act 1965 (compensation for injurious
affection to neighbouring land) as if that section applied in relation
to injury caused by the exercise of such a right as it applies in
relation to injury caused by the execution of works on land that
25has been compulsorily acquired.

(3) In the application of this paragraph to Scotland, compensation is
payable by the operator under section 6 of the Railway Clauses
Consolidation (Scotland) Act 1845 as if that section applied in
relation to injury caused by the exercise of such a right as it applies
30in relation to injury caused by the execution of works on land that
has been taken or used for the purpose of a railway.

(4) Any question as to a person’s entitlement to compensation by
virtue of sub-paragraph (3), or as to the amount of that
compensation, is, in default of agreement, to be determined by the
35Lands Tribunal for Scotland.

(5) In the application of this paragraph to Northern Ireland,
compensation is payable by the operator under Article 18 of the
Land Compensation (Northern Ireland) Order 1982 (SI 1982/712
(NI 9)) as if that section applied in relation to injury caused by the
40exercise of such a right as it applies in relation to injury caused by
the execution of works on land that has been compulsorily
acquired.

(6) Any question as to a person’s entitlement to compensation by
virtue of sub-paragraph (5), or as to the amount of that
45compensation, is, in default of agreement, to be determined by the
Lands Tribunal for Northern Ireland.

(7) Compensation is payable on a claim for compensation under this
paragraph only if the amount of the compensation exceeds £50.

(8) Compensation is payable to a person under this paragraph
irrespective of whether the person claiming the compensation has
any interest in the land in relation to which the right referred to in
sub-paragraph (1) is exercised.

(9) 5Compensation under this paragraph may include reasonable legal
and valuation expenses, subject to the provisions of any enactment
about the powers of the court or tribunal by whom an order for
compensation is made to award costs or, in Scotland, expenses.

No other compensation available

86 10Except as provided by any provision of Parts 2 to 13 of this code or
this Part, an operator is not liable to compensate any person for,
and is not subject to any other liability in respect of, any loss or
damage caused by the lawful exercise of any right conferred by or
in accordance with any provision of those Parts.

15Part 15 Notices under the code

Introductory

87 This Part makes provision—

(a) about requirements for the form of notices given under this
20code by operators,

(b) about requirements for the form of notices given under this
code by persons other than operators, and

(c) about procedures for giving notices.

Notices given by operators

88 (1) 25A notice given under this code by an operator must—

(a) explain the effect of the notice,

(b) explain which provisions of this code are relevant to the
notice, and

(c) explain the steps that may be taken by the recipient in
30respect of the notice.

(2) If OFCOM have prescribed the form of a notice which may or must
be given by an operator under a provision of this code, a notice
given by an operator under that provision must be in that form.

(3) A notice which does not comply with this paragraph is not a valid
35notice for the purposes of this code.

(4) Sub-paragraph (3) does not prevent the person to whom the notice
is given from relying on the notice if the person chooses to do so.

(5) In any proceedings under this code a certificate issued by OFCOM
stating that a particular form of notice has been prescribed by
40them as mentioned in this paragraph is conclusive evidence of that
fact.

Notices given by others

89 (1) Sub-paragraph (2) applies to a notice given under paragraph 31(1),
33(1), 39(1) or 40(2) by a person other than an operator.

(2) If OFCOM have prescribed the form of a notice given under the
5provision in question by a person other than an operator, the
notice must be in that form.

(3) A notice which does not comply with sub-paragraph (2) is not a
valid notice for the purposes of this code.

(4) Sub-paragraph (3) does not prevent the operator to whom the
10notice is given from relying on the notice if the operator chooses to
do so.

(5) Sub-paragraph (6) applies to a notice given under any other
provision of this code by a person other than an operator if—

(a) OFCOM have prescribed the form of a notice given under
15that provision by a person other than an operator,

(b) the notice is given in response to a notice given by an
operator, and

(c) the operator has, in giving the notice, drawn the person’s
attention to the form prescribed by OFCOM.

(6) 20The notice is a valid notice for the purposes of this code, but the
person giving the notice must bear any costs incurred by the
operator as a result of the notice not being in that form.

(7) In any proceedings under this code a certificate issued by OFCOM
stating that a particular form of notice has been prescribed by
25them as mentioned in this paragraph is conclusive evidence of that
fact.

Prescription of notices by OFCOM

90 (1) OFCOM must prescribe the form of a notice to be given under
each provision of this code that requires a notice to be given.

(2) 30OFCOM may from time to time amend or replace a form
prescribed under sub-paragraph (1).

(3) Before prescribing a form for the purposes of this code, OFCOM
must consult operators and such other persons as OFCOM think
appropriate.

(4) 35Sub-paragraph (3) does not apply to the amendment or
replacement of a form prescribed under sub-paragraph (1).

Procedures for giving notice

91 (1) A notice given under this code must not be sent by post unless it
is sent by a registered post service or by recorded delivery.

(2) 40For the purposes, in the case of a notice under this code, of section
394 of this Act (service of notifications and other documents) and
section 7 of the Interpretation Act 1978 (references to service by
post), the proper address of a person (“P”) is—

(a) if P has given the person giving the notice an address for
service under this code, that address, and

(b) otherwise, the address given by section 394.

(3) Sub-paragraph (4) applies if it is not practicable, for the purposes
5of giving a notice under this code, to find out after reasonable
enquiries the name and address of a person who is the occupier of
land for the purposes of this code.

(4) A notice may be given under this code to the occupier —

(a) by addressing it to a person by the description of
10“occupier” of the land (and describing the land), and

(b) by delivering it to a person who is on the land or, if there is
no person on the land to whom it can be delivered, by
affixing it, or a copy of it, to a conspicuous object on the
land.

(5) 15Sub-paragraph (6) applies if it is not practicable, for the purposes
of giving a notice under this code, to find out after reasonable
enquiries the name and address of the owner of an interest in land.

(6) A notice may be given under this code to the owner—

(a) by addressing it to a person by the description of “owner”
20of the interest (and describing the interest and the land),
and

(b) by delivering it to a person who is on the land or, if there is
no person on the land to whom it can be delivered, by
affixing it, or a copy of it, to a conspicuous object on the
25land.

Part 16 Enforcement and dispute resolution

Introductory

92 This Part of this code makes provision about—

(a) 30the court or tribunal by which agreements and rights
under this code may be enforced,

(b) the meaning of references to “the court” in this code, and

(c) the power of the Secretary of State by regulations to confer
jurisdiction under this code on other tribunals.

35Enforcement of agreements and rights

93 An agreement under this code, and any right conferred by this
code, may be enforced—

(a) in the case of an agreement imposed by a court or tribunal,
by the court or tribunal which imposed the agreement,

(b) 40in the case of any agreement or right, by any court or
tribunal which for the time being has the power to impose
an agreement under this code, or

(c) in the case of any agreement or right, by any court of
competent jurisdiction.

Meaning of “the court”

94 (1) In this code “the court” means—

(a) in relation to England and Wales, the county court,

(b) in relation to Scotland, the sheriff court, and

(c) 5in relation to Northern Ireland, a county court.

(2) Sub-paragraph (1) is subject to provision made by regulations
under paragraph 95.

Power to confer jurisdiction on other tribunals

95 (1) The Secretary of State may by regulations provide for a function
10conferred by this code on the court to be exercisable by any of the
following—

(a) in relation to England, the First-tier Tribunal;

(b) in relation to England and Wales, the Upper Tribunal;

(c) in relation to Scotland, the Lands Tribunal for Scotland;

(d) 15in relation to Northern Ireland, the Lands Tribunal for
Northern Ireland.

(2) Regulations under sub-paragraph (1) may make provision for the
function to be exercisable by a tribunal to which the regulations
apply—

(a) 20instead of by the court, or

(b) as well as by the court.

(3) The Secretary of State may by regulations make provision—

(a) requiring proceedings to which regulations under sub-
paragraph (1) apply to be commenced in the court or in a
25tribunal to which the regulations apply;

(b) enabling the court or such a tribunal to transfer such
proceedings to a tribunal which has jurisdiction in relation
to them by virtue of such regulations or to the court.

(4) The power in section 402(3)(c) for regulations under sub-
30paragraph (1) or (3) to make consequential provision includes
power to make provision which amends, repeals or revokes or
otherwise modifies the application of any enactment.

(5) Before making regulations under sub-paragraph (1) or (3) the
Secretary of State must—

(a) 35so far as the regulations relate to Scotland, consult the
Scottish Ministers;

(b) so far as the regulations relate to Northern Ireland, consult
the Department of Justice in Northern Ireland.

Award of costs by tribunal

96 (1) 40Where in any proceedings a tribunal exercises functions by virtue
of regulations under paragraph 95(1), it may make such order as it
thinks fit as to costs, or, in Scotland, expenses.

(2) The matters a tribunal must have regard to in making such an
order include in particular the extent to which any party is
successful in the proceedings.

Applications to the court

97 5Regulation 3 of the Electronic Communications and Wireless
Telegraphy Regulations 2011 (SI 2011/1210) makes provision
about the time within which certain applications to the court
under this code must be determined.

Appeals in Northern Ireland

98 10Article 60 of the County Courts (Northern Ireland) Order 1980
(ordinary appeals from the county court in civil cases) is to apply
in relation to any determination of the court in Northern Ireland
under this code in the same manner as it applies in relation to any
decree of the court made in the exercise of the jurisdiction
15conferred by Part 3 of that Order.

Part 17 Supplementary provisions

Relationship between this code and existing law

99 (1) This code does not authorise the contravention of any provision of
20an enactment passed or made before the coming into force of this
code.

(2) Sub-paragraph (1) does not apply if and to the extent that an
enactment makes provision to the contrary.

Relationship between this code and agreements with operators

100 (1) 25This code does not affect any rights or liabilities arising under an
agreement to which an operator is a party.

(2) Sub-paragraph (1) does not apply in relation to paragraph 99 or
Parts 3 to 6 of this code.

Ownership of property

101 30The ownership of property does not change merely because the
property is installed on or under, or affixed to, any land by any
person in exercise of a right conferred by or in accordance with
this code.

Conduits

102 (1) 35This code does not authorise an operator to do anything inside a
relevant conduit without the agreement of the authority with
control of the conduit.

(2) The agreement of the authority with control of a public sewer is
sufficient in all cases to authorise an operator to exercise any of the

rights under this code in order to do anything wholly inside that
sewer.

(3) In this paragraph the following expressions have the same
meanings as in section 98 of the Telecommunications Act 1984—

(a) 5“public sewer” and “relevant conduit”;

(b) references to the authority with control of a relevant
conduit.

Duties for OFCOM to prepare codes of practice

103 (1) OFCOM must prepare and publish a code of practice dealing
10with—

(a) the provision of information for the purposes of this code
by operators to persons who occupy or have an interest in
land;

(b) the conduct of negotiations for the purposes of this code
15between operators and such persons;

(c) the conduct of operators in relation to persons who occupy
or have an interest in land adjoining land on, under or over
which electronic communications apparatus is installed;

(d) such other matters relating to the operation of this code as
20OFCOM think appropriate.

(2) OFCOM must prepare and publish standard terms which may
(but need not) be used in agreements under this code.

(3) OFCOM may from time to time—

(a) amend or replace a code of practice or standard terms
25published under this paragraph;

(b) publish the code or terms as amended or (as the case may
be) the replacement code or terms.

(4) Before publishing a code of practice or standard terms under this
paragraph, OFCOM must consult operators and such other
30persons as OFCOM think appropriate.

(5) Sub-paragraph (4) does not apply to—

(a) the publication of amendments to a code of practice or
standard terms, or

(b) the publication of a replacement code or replacement
35terms.

Application of this code to the Crown

104 (1) This code applies in relation to land in which there subsists, or at
any material time subsisted, a Crown interest as it applies in
relation to land in which no such interest subsists.

(2) 40In this code “Crown interest” means—

(a) an interest which belongs to Her Majesty in right of the
Crown,

(b) an interest which belongs to Her Majesty in right of the
Duchy of Lancaster,

(c) 45an interest which belongs to the Duchy of Cornwall,

(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 the relevant
person or, as the case may be, the government department
or office-holder in the Scottish Administration having the
25management of the land 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) In sub-paragraph (6)(a) “relevant person”, in relation to land to
45which section 90B(5) of the Scotland Act 1998 applies, means the
person having the management of that land.

(8) Any question as to the authority that is the appropriate authority
in relation to any land is to be referred to the Treasury, whose
decision is final.