Digital Economy Bill (HC Bill 45)

Digital Economy BillPage 140

9 Any agreement that has effect under paragraph 15 of the existing code and
that would be sufficient for the purpose of doing anything wholly inside a
sewer if that paragraph continued in force is sufficient for that purpose
under paragraph 98(2) of the new code.

5Court applications for required rights etc

10 (1) This paragraph applies where—

(a) before the time when the new code comes into force, a notice has
been given under paragraph 5(1) of the existing code, and

(b) at that time no application has been made to the court in relation to
10the notice.

(2) The notice has effect as if given under paragraph 19(2) of the new code.

11 (1) This paragraph applies where before the time when the new code comes into
force—

(a) a notice has been given under paragraph 5(1) of the existing code,
15and

(b) an application has been made to the court in relation to the notice.

(2) Subject to the following provisions of this paragraph, the existing code
continues to apply in relation to the application.

(3) An order made under the existing code by virtue of sub-paragraph (2) has
20effect as an order under paragraph 19 of the new code.

(4) If the operator gives a notice in accordance with sub-paragraph (5), from the
time when the notice takes effect—

(a) sub-paragraph (2) does not apply, and

(b) the application mentioned in sub-paragraph (1)(b) has effect as if
25made under paragraph 19(3) of the new code;

but this is subject to sub-paragraph (6).

(5) A notice under sub-paragraph (4)

(a) must be given to the person, or each person, on whom the notice
mentioned in sub-paragraph (1)(a) was served;

(b) 30must be given not later than the end of the period of 28 days
beginning with the day on which the new code comes into force.

(6) A notice under sub-paragraph (4)

(a) takes effect at the end of the period of 28 days beginning with the day
on which the notice is given; but

(b) 35does not have effect if before the end of that period the court or any
person to whom the notice was given gives a notice under this sub-
paragraph.

(7) A notice under sub-paragraph (6) may be given by the court only if it
appears to the court on its own motion that it would be unreasonable in all
40the circumstances for the application to have effect as if made under
paragraph 19(3) of the new code.

(8) For the purposes of sub-paragraph (7), any difference between the amount
of any payment that would fall be to made under an order under paragraph
5 of the existing code and under an order under paragraph 19 of the new
45code is to be disregarded.

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(9) Nothing in this paragraph prevents the operator from—

(a) withdrawing an application falling within sub-paragraph (1)(b), or

(b) giving a notice or making an application to the court under
paragraph 19 of the new code in respect of the same right.

(10) 5The operator must bear any costs arising from the service of a notice under
sub-paragraph (4) or any action taken by the operator within sub-paragraph
(9).

Temporary code rights

12 (1) The coming into force of the new code does not affect any order made under
10paragraph 6 of the existing code.

(2) An application under that paragraph that is pending in relation to
proceedings under paragraph 5 of that code when a notice under paragraph
11(4) takes effect in relation to the proceedings has effect as an application
under paragraph 26 of the new code.

15Compensation

13 The repeal of the existing code does not affect paragraph 16 of that code, or
any other right to compensation, as it applies in relation to the exercise of a
right before the new code comes into force.

Objections in relation to apparatus

14 20The repeal of the existing code does not affect paragraphs 17 and 18 of that
code as they apply in relation to anything whose installation was completed
before the repeal comes into force.

15 (1) Subject to the following provisions of this paragraph, the repeal of the
existing code does not affect paragraph 20 of that code as it applies in
25relation to anything whose installation was completed before the repeal
comes into force.

(2) A right under paragraph 20 is not by virtue of sub-paragraph (1) exercisable
in relation to any apparatus by a person who is a party to, or is bound by, an
agreement under the new code in relation to the apparatus.

(3) 30A subsisting agreement is not an agreement under the new code for the
purposes of sub-paragraph (2).

16 Part 12 of the new code does not apply in relation to apparatus whose
installation was completed before the new code came into force.

Tree lopping

17 (1) 35This paragraph applies where—

(a) before the time when the new code comes into force, a notice has
been given under paragraph 19 of the existing code, and

(b) at that time no application has been made to the court in relation to
the notice.

(2) 40The notice and any counter-notice under that paragraph have effect as if
given under paragraph 78 of the new code.

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18 (1) This paragraph applies where before the time when the new code comes into
force—

(a) a notice has been given under paragraph 19 of the existing code, and

(b) an application has been made to the Court in relation to the notice.

(2) 5The existing code continues to apply in relation to the application.

Right to require removal of apparatus

19 The repeal of the existing code does not affect the operation of paragraph 21
of that code in relation to an entitlement under sub-paragraph (3) of that
paragraph arising before the repeal comes into force.

20 (1) 10This paragraph applies if—

(a) a person has given notice under sub-paragraph (2) of paragraph 21
of the existing code before the time when the repeal of that code
comes into force,

(b) the 28 day period mentioned in sub-paragraph (3) of that paragraph
15ends after that time, and

(c) no counter-notice is given under that paragraph within that period.

(2) Paragraphs 38(6) and (7) and 39 of the new code apply in relation to that
person as they apply in relation to the landowner mentioned in paragraph
38(6).

21 (1) 20This paragraph applies if—

(a) a person has given notice under sub-paragraph (2) of paragraph 21
of the existing code before the time when the repeal of that code
comes into force,

(b) a counter-notice has been given under sub-paragraph (3) of that
25paragraph before or after that time, and

(c) no application has been made to the court under that paragraph by
the operator.

(2) The counter-notice has effect as a notice under paragraph 19(2) of the new
code.

(3) 30On an application under paragraph 19 of the new code as it applies by virtue
of sub-paragraph (2), the court may not make an order under that paragraph
(in addition to the circumstances provided for in sub-paragraph (5) of that
paragraph) if it appears to the court, in relation to any relevant agreement—

(a) that there were substantial breaches by the operator of its obligations
35under the agreement, or

(b) that there were persistent delays by the operator in making
payments to the site provider under the agreement.

(4) In sub-paragraph (3) “relevant agreement” means any agreement between
the operator and the landowner that was in force before the right to require
40removal arose under paragraph 21 of the existing code.

22 (1) This paragraph applies if, before the repeal of the existing code comes into
force—

(a) an application has been made to the court under paragraph 21 of that
code, and

(b) 45the matter has not been determined by the court.

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(2) The repeal of the existing code does not affect the operation of paragraph 21
of that code in relation to the application.

(3) But any party to the proceedings may apply to the court for an order that the
application be treated as an application to the court under paragraph 19 of
5the new code.

(4) The court must grant an application under sub-paragraph (3) unless it thinks
it would be unreasonable in all the circumstances to do so.

Undertaker’s works

23 The repeal of the existing code does not affect the operation of paragraph 23
10of that code in relation to works—

(a) in relation to which a notice has been given under that paragraph
before the time when that repeal comes into force, or

(b) which have otherwise been commenced before that time.

Supplementary

24 15Any agreement which, immediately before the repeal of the existing code, is
a relevant agreement for the purposes of paragraph 29 of that code is to be
treated in relation to times after the coming into force of that repeal as a
relevant agreement for the purposes of paragraph 17 of the new code.

25 Part 15 of the new code applies in relation to notices under this Schedule as
20it applies in relation to notices under that code.

26 Paragraphs 24 to 27 of the existing code continue to have effect in relation to
any provision of that code so far as the provision has effect by virtue of this
Schedule.

27 A person entitled to compensation by virtue of this Schedule is not entitled
25to compensation in respect of the same matter under any provision of the
new code.

Section 4

SCHEDULE 3 The electronic communications code: consequential amendments

Landlord and Tenant Act 1954 (c. 56)Landlord and Tenant Act 1954 (c. 56)

1 30In section 23 of the Landlord and Tenant Act 1954 (tenancies to which
provisions on security of tenure for business etc tenants apply) after
subsection (4) insert—

(5) This Part does not apply to a tenancy the primary purpose of which
is to grant code rights within the meaning of Schedule 3A to the
35Communications Act 2003 (the electronic communications code).”

Landlord and Tenant Act 1987 (c. 31)Landlord and Tenant Act 1987 (c. 31)

2 In section 4(2) of the Landlord and Tenant Act 1987 (disposals which are not
relevant disposals for purposes of tenants’ right of first refusal) after

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paragraph (da) insert—

(da) the conferral of a code right under Schedule 3A to the
Communications Act 2003 (the electronic communications
code);”.

5Landlord and Tenant (Covenants) Act 1995 (c. 30)Landlord and Tenant (Covenants) Act 1995 (c. 30)

3 In section 5 of the Landlord and Tenant (Covenants) Act 1995 (tenant
released from covenants on assignment of tenancy), after subsection (4)
insert—

(5) This section is subject to paragraph 15(4) of Schedule 3A to the
10Communications Act 2003 (which places conditions on the release of
an operator from liability under an agreement granting code rights
under the electronic communications code).”

Business Tenancies (Northern Ireland) Order 1996 (SI 1996/725 (NI 5)SI 1996/725 (NI 5))

4 In Article 4(1) of the Business Tenancies (Northern Ireland) Order 1996
15(tenancies to which the Order does not apply) after paragraph (k) insert—

(l) a tenancy the primary purpose of which is to grant code
rights within the meaning of Schedule 3A to the
Communications Act 2003 (the electronic communications
code).”

20Communications Act 2003 (c. 21)Communications Act 2003 (c. 21)

5 The Communications Act 2003 is amended as follows.

6 (1) Section 394 (service of notifications and other documents) is amended as
follows.

(2) In subsection (2) omit paragraph (d).

(3) 25After subsection (10) insert—

(11) In its application to Schedule 3A this section is subject to paragraph
87 of that Schedule.”

7 (1) Section 402 (power of Secretary of State to make orders and regulations) is
amended as follows.

(2) 30In subsection (2) after paragraph (a) insert—

(aa) regulations under paragraph 91 of that Schedule which
amend, repeal or modify the application of primary
legislation,”.

(3) After subsection (2) insert—

(2A) 35A statutory instrument containing (whether alone or with other
provisions) regulations under paragraph 91 of Schedule 3A which
amend, repeal or modify the application of primary legislation, may
not be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.”

(4) 40After subsection (3) insert—

(4) In this section “primary legislation” means—

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(a) an Act of Parliament,

(b) a Measure or Act of the National Assembly for Wales,

(c) an Act of the Scottish Parliament, or

(d) Northern Ireland legislation.”

5Consequential repeal

8 In consequence of the amendments made by section 4 and this Schedule,
Schedule 3 to the Communications Act 2003 is repealed.