Part 6 - Rights to require removal of electronic communications apparatus

Infrastructure Bill [Lords] – in a Public Bill Committee at 3:30 pm on 15th January 2015.

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Introductory

36 This Part of this code makes provision about—

(a) the cases in which a person with an interest in land has the right to require the removal of electronic communications apparatus,

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

(c) the means by which a right to require removal can be enforced.

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

37 (1) A 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 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 or has ceased to bind the landowner—

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

(b) as the result of an order under paragraph 32(4) or 34(4) or (6).

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

(5) The 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 of the operator’s network, and

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

(6) The fourth condition is that—

(a) this code has ceased to apply to a person so that the person is 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) there is no other person with a right conferred by or under this code to keep the apparatus on, under or over the land.

(7) The fifth condition is that—

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

(i) a 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 50(9) or 56(8), and

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

How does a person find out whether apparatus is on land pursuant to a code right?

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

(a) the 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 operator to keep electronic communications apparatus on, under or over land in which the landowner has an interest.

(2) The notice must comply with paragraph 86 (notices given by persons other than operators).

(3) Sub-paragraph (4) 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) was given, give a notice to the landowner that—

(i) complies with paragraph 85 (notices given by operators), and

(ii) discloses the information sought by the landowner,

(b) the landowner takes action under paragraph 39 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 purposes 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.

(4) The operator must nevertheless bear the costs of any action taken by the landowner under paragraph 39 to enforce the removal of the apparatus.

How does a person enforce removal of apparatus?

39 (1) A landowner who has the right to require the removal of electronic communications apparatus on, under or over land may, in accordance with this paragraph, require the operator whose apparatus it is—

(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.

(2) The landowner may give a notice to the operator 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) The notice must—

(a) comply with paragraph 86 (notices given by persons other than operators), and

(b) specify 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 beginning with the day on which the notice was given, the landowner 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 before 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 restored.

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

(a) an order under paragraph 40(1) (order requiring operator to sell apparatus etc), or

(b) an order under paragraph 40(2) (order enabling landowner to sell apparatus etc).

(7) If the court makes an order under paragraph 40(1), but the operator does not comply with the agreement imposed on the operator and the landowner by virtue of paragraph 40(5), the landowner may make an application to the court for an order under paragraph 40(2).

What orders may the court make on an application under paragraph 39?

40 (1) An order under this paragraph is an order that the operator must, within the period specified in the order—

(a) remove the 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 paragraph is an order that the landowner may do any of the following—

(a) remove or arrange the removal of the electronic communications 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 its 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 as mentioned in paragraph (c) or (d).

(3) An order under this paragraph 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 right.

(4) Paragraph 81 makes further provision about compensation under sub-paragraph (3).

(5) An order under sub-paragraph (1) takes effect as an agreement between the operator and the landowner that—

(a) requires the operator to take the steps specified in the order, and

(b) otherwise contains such terms as the court may so specify.