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(6) The 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
5stating that a particular form of notice has been prescribed by
them as mentioned in this paragraph is conclusive evidence of that
fact.

Prescription of notices by OFCOM

86 (1) OFCOM must prescribe the form of a notice to be given under
10each provision of this code that requires a notice to be given.

(2) OFCOM 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
15appropriate.

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

Procedures for giving notice

87 (1) A notice given under this code must not be sent by post unless it
20is sent by a registered post service or by recorded delivery.

(2) For 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) 25if 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
of giving a notice under this code, to find out after reasonable
30enquiries 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
“occupier” of the land (and describing the land), and

(b) 35by 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) Sub-paragraph (6) applies if it is not practicable, for the purposes
40of 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—

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(a) by addressing it to a person by the description of “owner”
of 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
5no 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.

Part 16 Enforcement and dispute resolution

10Introductory

88 This Part of this code makes provision about—

(a) the 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) 15the power of the Secretary of State by regulations to confer
jurisdiction under this code on other tribunals.

Enforcement of agreements and rights

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

(a) 20in the case of an agreement imposed by a court or tribunal,
by the court or tribunal which imposed the agreement,

(b) in 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) 25in the case of any agreement or right, by any court of
competent jurisdiction.

Meaning of “the court”

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

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

(b) 30in relation to Scotland, the sheriff court, and

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

(2) Sub-paragraph (1) is subject to provision made by regulations
under paragraph 91.

Power to confer jurisdiction on other tribunals

91 (1) 35The Secretary of State may by regulations provide for a function
conferred by this code on the court to be exercisable by any of the
following—

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

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

(c) 40in relation to Scotland, the Lands Tribunal for Scotland;

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

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

(a) instead of by the court, or

(b) 5as 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
tribunal to which the regulations apply;

(b) 10enabling 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-
paragraph (1) or (3) to make consequential provision includes
15power 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) so far as the regulations relate to Scotland, consult the
20Scottish Ministers;

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

Award of costs by tribunal

92 (1) Where in any proceedings a tribunal exercises functions by virtue
25of regulations under paragraph 91(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.

30Applications to the court

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

35Appeals in Northern Ireland

94 Article 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
40decree of the court made in the exercise of the jurisdiction
conferred by Part 3 of that Order.

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Part 17 Supplementary provisions

Relationship between this code and existing law

95 (1) This code does not authorise the contravention of any provision of
5an 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

96 (1) 10This 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 60(2) to
(5), paragraph 95 or Parts 3 to 6 of this code.

Ownership of property

97 15The 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

98 (1) 20This 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
25rights 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) “public sewer” and “relevant conduit”;

(b) 30references to the authority with control of a relevant
conduit.

Duties for OFCOM to prepare codes of practice

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

(a) 35the 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
between operators and such persons;

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(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
5OFCOM 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
10published 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
15persons 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
20terms.

Application of this code to the Crown

100 (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) 25In 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) 30an 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
35Administration 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
40Majesty’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
45of any Crown interest subsisting in any land, the agreement must
be given by the appropriate authority.

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(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) In this paragraph “the appropriate authority” means—

(a) 5in the case of land belonging to Her Majesty in right of the
Crown, the Crown Estate Commissioners or, as the case
may be, the government department or office-holder in the
Scottish Administration having the management of the
land in question;

(b) 10in 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,
such person as the Duke of Cornwall, or the possessor for
15the 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
Administration, the office-holder;

(e) 20in 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) in the case of land belonging to a government department
25or 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) Any question as to the authority that is the appropriate authority
in relation to any land is to be referred to the Treasury, whose
30decision is final.

(8) Paragraphs 50 (offence in relation to transport land rights) and
71(5) (offence in relation to notices on overhead apparatus) do not
apply where this code applies in the case of the Secretary of State
or a Northern Ireland department by virtue of section 106(3)(b).

(9) 35References in this paragraph to an office-holder in the Scottish
Administration are to be construed in accordance with section
126(7) of the Scotland Act 1998.

Meaning of “occupier”

101 (1) References in this code to an occupier of land are to the occupier
40of the land for the time being.

(2) References in this code to an occupier of land, in relation to a
footpath or bridleway that crosses and forms part of agricultural
land, are to the occupier of that agricultural land.

(3) Sub-paragraph (4) applies in relation to land which is—

(a) 45a street in England and Wales or Northern Ireland, other
than a footpath or bridleway within sub-paragraph (2), or

(b) a road in Scotland, other than such a footpath or
bridleway.

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(4) References in this code to an occupier of land—

(a) in relation to such a street in England and Wales, are to the
street managers within the meaning of Part 3 of the New
Roads and Street Works Act 1991,

(b) 5in relation to such a street in Northern Ireland, are to the
street managers within the meaning of the Street Works
(Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)SI 1995/3210 (NI 19)), and

(c) in relation to such a road in Scotland, are to the road
managers within the meaning of Part 4 of the New Roads
10and Street Works Act 1991.

(5) Sub-paragraph (6) applies in relation to land which—

(a) is unoccupied, and

(b) is not a street in England and Wales or Northern Ireland or
a road in Scotland.

(6) 15References in this code to an occupier of land, in relation to land
within sub-paragraph (5), are to—

(a) the person (if any) who for the time being exercises powers
of management or control over the land, or

(b) if there is no person within paragraph (a), to every person
20whose interest in the land would be prejudicially affected
by the exercise of a code right in relation to the land.

(7) In this paragraph—

(a) “agricultural land” includes land which is being brought
into use for agriculture, and

(b) 25references in relation to England and Wales to a footpath
or bridleway include a restricted byway.

Lands Tribunal for Scotland procedure rules

102 The power to make rules under section 3(6) of the Lands Tribunal
Act 1949 (Lands Tribunal for Scotland procedure rules) for the
30purposes of this code or regulations made under it is exercisable
by the Scottish Ministers instead of by the Secretary of State (and
any reference there to the approval of the Treasury does not
apply).

Arbitrations in Scotland

103 35Until the Arbitration (Scotland) Act 2010 is in force in relation to
any arbitrations carried out under or by virtue of this code, that
Act applies as if it were in force in relation to those arbitrations.

General interpretation

104 (1) In this code—

  • 40“agriculture” and “agricultural”—

    (a)

    in relation to England and Wales, have the same
    meanings as in the Highways Act 1980,

    (b)

    in relation to Scotland, have the same meanings as in
    the Town and Country Planning (Scotland) Act 1997,
    45and

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    (c)

    in relation to Northern Ireland, have the same
    meanings as in the Agriculture Act (Northern
    Ireland) 1949;

  • “bridleway” and “footpath”—

    (a)

    5in relation to England and Wales, have the same
    meanings as in the Highways Act 1980,

    (b)

    in relation to Scotland, have the same meanings as
    Part 3 of the Countryside (Scotland) Act 1967, and

    (c)

    in relation to Northern Ireland, mean a way over
    10which the public have, by virtue of the Access to the
    Countryside (Northern Ireland) Order 1983 (SI 1983/
    1895 (NI 18)), a right of way (respectively) on
    horseback and on foot;

  • “code agreement” has the meaning given by paragraph 28(5);

  • 15“Crown interest” has the meaning given by paragraph 100(2)
    and (3);

  • “enactment” includes—

    (a)

    an enactment comprised in subordinate legislation
    within the meaning of the Interpretation Act 1978,

    (b)

    20an enactment comprised in, or in an instrument made
    under, a Measure or Act of the National Assembly for
    Wales,

    (c)

    an enactment comprised in, or in an instrument made
    under, an Act of the Scottish Parliament, and

    (d)

    25an enactment comprised in, or in an instrument made
    under, Northern Ireland legislation;

  • “land” does not include electronic communications
    apparatus;

  • “landowner” has the meaning given by paragraph 36(1);

  • 30“lease” includes—

    (a)

    in relation to England and Wales and Northern
    Ireland, any leasehold tenancy (whether in the nature
    of a head lease, sub-lease or underlease) and any
    agreement to grant such a tenancy but not a mortgage
    35by demise or sub-demise, and

    (b)

    in relation to Scotland, any sub-lease and any
    agreement to grant a sub-lease,

    and “lessee” is to be construed accordingly;

  • “relevant person” has the meaning given by paragraph 19(1);

  • 40“restricted byway” has the same meaning as in Part 2 of the
    Countryside and Rights of Way Act 2000;

  • “road”—

    (a)

    in relation to Scotland, has the same meaning as in
    Part 4 of the New Roads and Street Works Act 1991;

    (b)

    45in relation to Northern Ireland, has the same meaning
    as in the Roads (Northern Ireland) Order 1993 (SI
    1993/3160 (NI 15));

  • “site provider” has the meaning given by paragraph 29(1);

  • “street”—

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    (a)

    in relation to England and Wales, has the same
    meaning as in Part 3 of the New Roads and Street
    Works Act 1991, and

    (b)

    in relation to Northern Ireland, has the same meaning
    5as in the Street Works (Northern Ireland) Order 1995
    (SI 1995/3210 (NI 19)SI 1995/3210 (NI 19)).

(2) In this code, references to the alteration of any apparatus include
references to the moving, removal or replacement of the
apparatus.”

Section 4

10SCHEDULE 2 The electronic communications code: transitional provision

Interpretation

1 (1) This paragraph has effect for the purposes of this Schedule.

(2) The “existing code” means Schedule 2 to the Telecommunications Act 1984.

(3) 15The “new code” means Schedule 3A to the Communications Act 2003.

(4) A “subsisting agreement” means—

(a) an agreement under paragraph 2(1) of the existing Code, or

(b) an order under paragraph 5 of the existing code,

which is in force, as between an operator and any person, at the time the new
20Code comes into force (and whose terms do not provide for it to cease to
have effect at that time).

(5) Expressions used in this Schedule and in the new code have the same
meaning as in the new code, subject to any modification made by this
Schedule.

25Effect of subsisting agreement

2 A subsisting agreement has effect after the new code comes into force as an
agreement under Part 2 of the new code between the same parties, subject to
the modifications made by this Schedule.

Limitation of code rights

3 30In relation to a subsisting agreement, references in the new code to a code
right are, in relation to the operator and the land to which the agreement
relates, references to a right for the statutory purposes to do the things listed
in paragraph 2(1)(a) to (c) of the existing code.

Limitation of persons bound

4 (1) 35A person bound by a code right by virtue only of paragraph 2(3) of the
existing code continues to be bound by it so long as they would be bound if
paragraph 2(3) of the existing code continued to have effect.

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(2) In relation to such a person, paragraph 4(4) to (12) of the existing code
continue to have effect, but as if in paragraph 4(4)(b) the reference to
paragraph 21 of the existing Code were a reference to Part 5 of the new code.

Exclusion of assignment, upgrading and sharing provisions

5 (1) 5Part 3 of the new code (assignment of code rights, and upgrading and
sharing of apparatus) does not apply in relation to a subsisting agreement.

(2) Part 3 of the new code does not apply in relation to a code right conferred
under the new code if, at the time when it is conferred, the exercise of the
right depends on a right that has effect under a subsisting agreement.

10Termination and modification of agreements

6 (1) Part 5 of the new code (termination and modification of agreements) applies
in relation to a subsisting agreement subject to the following modifications.

(2) The “site provider” (see paragraph 29 of the new code) does not include a
person who was under the existing code bound by the agreement only by
15virtue of paragraph 2(2)(c) of that code.

(3) Where the unexpired term of the subsisting agreement at the coming into
force of the new code is less than 18 months, paragraph 30 applies (with
necessary modification) as if for the period of 18 months referred to in sub-
paragraph (3)(a) there were substituted a period equal to the unexpired term
20or 3 months, whichever is greater.

(4) Paragraph 33 applies with the omission of sub-paragraph (13)(d).

Apparatus, works etc

7 (1) Paragraphs 9 to 12 of the existing code (rights in relation to street works,
flying lines, tidal waters, linear obstacles) continue to apply in relation to
25anything in the process of being done when the new code comes into force.

(2) Apparatus lawfully installed under any of those provisions (before or after
the time when the new code comes into force) is to be treated as installed
under the corresponding provision of the new code if it could have been
installed under that provision if the provision had been in force or applied
30to its installation.

(3) The corresponding provisions are—

(a) Part 7 (transport land rights), in relation to paragraph 12 of the
existing code;

(b) Part 8 (street work rights), in relation to paragraph 9 of the existing
35code;

(c) Part 9 (tidal water rights), in relation to paragraph 11 of the existing
code;

(d) paragraph 70 (power to fly lines), in relation to paragraph 10 of the
existing code.

8 40Any agreement given in accordance with paragraph 26(3) of the existing
code for the purposes of paragraph 11(2) of that code has effect for the
purposes of paragraph 60 of the new code as if given in accordance with
paragraph 100 of that code