PART 6COMMUNICATIONS NETWORK OPERATORS
Effect
1. For the protection of any operator, the following provisions, unless otherwise agreed in writing between the undertaker and the operator, have effect.
Interpretation
2. In this part of this Schedule—
“the 2003 Act” means the Communications Act 2003;
“conduit system” has the same meaning as in the electronic communications code (under paragraph 2(1) of Schedule 3 to the 2003 Act) and references to providing a conduit system shall be construed in accordance with paragraph 1(3A) of that code;
“electronic communications apparatus” has the same meaning as in the electronic communications code also hereinafter referred to as apparatus;
“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;
“electronic communications code network” means—
so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 or paragraph 17 of Schedule 18 of the 2003 Act; and
an electronic communications network which the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 or paragraph 17 of Schedule 18 of the 2003 Act; and
“operator” means the operator of an electronic communications code network.
Electronic communications apparatus installed on, under or over any land
3. The exercise of the powers pursuant to this order are subject to paragraph 23 of Schedule 2 to the Telecommunications Act 1984 as if the undertaker were a “relevant undertaker” for the purposes of that paragraph.
Enactments and agreements in respect of apparatus in the promoter’s land
4. Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any electronic communications apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.
Temporary and Permanent stopping up of streets forming part of the public maintainable highway
5.—(1) The temporary stopping up or diversion of any highway under article 15 (temporary stopping up) shall not affect any right of the operator under paragraph 9 of the electronic communications code to maintain any apparatus which, at the time of the stopping up or diversion, is in that highway.
(2) The undertaker shall give not less than 28 days’ notice in writing of its intention to temporarily stop up any highway to any operator of an electronic communications code network whose apparatus is under, over, in, on, along or across the highway and shall include in such notice details of the proposed duration of the temporary stopping up and the reason for it being required.
(3) Where a notice under sub-paragraph (2) has been given, the operator, if it reasonably considers that it is necessary for the safe and efficient operation and maintenance of the apparatus, may, and, if reasonably requested so to do by the undertaker in the notice, shall, as soon as reasonably practicable after the service of the notice—
(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the operator may reasonably determine and have power to place it, or
(b)provide other apparatus in substitution for the existing apparatus and place it in such other position as aforesaid.
(4) Subject to the following provisions of this paragraph the undertaker shall pay to any operator of an electronic communications code network an amount equal to the cost reasonably incurred by the operator in or in connection with—
(a)the execution of protection or relocation works required in consequence of the temporary or permanent stopping up of the highway, and
(b)the doing of any other work or thing rendered necessary by the execution of protection and or relocation works.
(5) If in the course of the execution of relocation works under sub-paragraph (3)—
(a)apparatus of better type, greater capacity or greater dimensions is placed in substitution for existing apparatus of worse type, smaller capacity or smaller dimensions, except where this has been solely due to using the nearest currently available type, capacity or dimension, or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus save where the depth as to placing is at the request of the undertaker and or to accommodate the authorised project) is placed at a depth greater than the depth at which existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined to be necessary in consequence of the construction of the authorised project in order to ensure the continued efficient operation of the electronic communications code network of the operator then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth (save as aforesaid), as the case may be, the amount which apart from this paragraph would be payable to the operator by virtue of sub-paragraph (4) shall be reduced by the amount of that excess.
(6) For the purposes of sub-paragraph (5)—
(a)the installation of replacement apparatus in accordance with the standard construction specification in use by the operator at the time of works, the physical conditions and the engineering requirements that the apparatus will be subject to in its relocated position and the extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended provides more than an equivalent service except where such service is solely due to having used equipment of the nearest alternative type, capacity or dimension which may be available at the time it was placed, and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole (in either case of such type, capacity and dimensions as shall reasonably be appropriate) shall be treated as if it also had been agreed or had been so determined.
(7) The amount which apart from this sub-paragraph would be payable to an operator in respect of works by virtue of sub-paragraph (4) (and having regard, where relevant, to sub-paragraph (5)) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7½ years earlier so as to confer on the operator any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
Indemnity
6.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the installation of any such works authorised by this Schedule or in consequence of the installation, use, maintenance or failure of any of the authorised development by or on behalf of the promoter or in consequence of any act or default of the promoter (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the promoter under this Schedule or any subsidence resulting from any of these works), any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, or the undertaker becomes liable to pay any amount to any third party, the promoter shall—
(a)bear and pay on demand the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and
(b)indemnify that undertaker for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the undertaker, by reason or in consequence of any such damage or interruption or the undertaker becoming liable to any third party as aforesaid
(2) The fact that any act or thing may have been done by an undertaker on behalf of the promoter or in accordance with a plan approved by an undertaker or in accordance with any requirement of an undertaker or under its supervision shall not (subject to sub-paragraph (3), excuse the promoter from liability under the provisions of this sub-paragraph (1)).
(3) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any damage or interruption to the extent that it is attributable to the neglect or default of an undertaker, its officers, servants, contractors or agents.
(4) An undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the promoter and considering their representations.
Arbitration
7. Any difference or dispute arising between the undertaker and an operator under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and that operator, be referred to and settled by arbitration under article 63 (arbitration).