Communications Act 2003, Schedule 3A, paragraph 27

Temporary code rights

SCHEDULE 3A The electronic communications code

27 (1) This paragraph applies where—

(a) an operator gives a notice under paragraph 20(2) to a person in respect of any land,

(b) the notice also requires that person's agreement on a temporary basis in respect of a right which is to be exercisable (in whole or in part) in relation to electronic communications apparatus which is already installed on, under or over the land, and

(c) the person has the right to require the removal of the apparatus in accordance with paragraph 37 or as mentioned in paragraph 40(1) but the operator is not for the time being required to remove the apparatus.

(2) [F1419 Subject to paragraph 27ZA,F1419] the court may, on the application of the operator, impose on the operator and the person an agreement between them which confers on the operator, or provides for the person to be bound by, such temporary code rights as appear to the court reasonably necessary for securing the objective in sub-paragraph (3).

(3) That objective is that, until the proceedings under paragraph 20 and any proceedings under paragraph 40 are determined, the service provided by the operator's network is maintained and the apparatus is properly adjusted and kept in repair.

(4) Subject to sub-paragraphs (5) and (6), the following provisions apply in relation to an order under this paragraph and an agreement imposed by it as they apply in relation to an order under paragraph 20 and an agreement imposed by it—

(a) paragraph 20(3) (time at which operator may apply for agreement to be imposed);

(b) paragraph 22 (effect of agreement imposed under paragraph 20);

(c) paragraph 23 (terms of agreement imposed under paragraph 20);

(d) paragraph 24 (payment of consideration);

(e) paragraph 25 (payment of compensation);

(f) paragraph 84 (compensation where agreement imposed).

(5) The court may make an order under this paragraph even though the period mentioned in paragraph 20(3)(a) has not elapsed (and paragraph 20(3)(b) does not apply) if the court thinks that the order should be made as a matter of urgency.

(6) Paragraphs [F1420 20(3), 22,F1420] 23, 24 and 25 apply by virtue of sub-paragraph (4) as if—

(a) references to the relevant person were to the person mentioned in sub-paragraph (1) of this paragraph, and

(b) the duty in paragraph 23 to include terms as to the payment of consideration to that person in an agreement were a power to do so.

(7) Sub-paragraph (8) applies where, in the course of the proceedings under paragraph 20, it is shown that a person with an interest in the land was entitled to require the removal of the apparatus immediately after it was installed.

(8) The court must, in determining for the purposes of paragraph 20 whether the apparatus should continue to be kept on, under or over the land, disregard the fact that the apparatus has already been installed there.

Definitions used in Schedule 3A, paragraph 27 5

the operator

18 (1) This paragraph applies where, immediately before the abolition of licensing, a person holding a licence under section 7 of the 1984 Act (“the operator”) —

(a) is a person to whom the telecommunications code applies in respect of the running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

Defined in Sch.18 para.18(1) · see it in the full Act
land

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Defined in Sch.4 para.5(8) · see it in the full Act
electronic communications apparatus

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act
apparatus

“apparatus” includes any equipment, machinery or device and any wire or cable and the casing or coating for any wire or cable;

Defined in s.405(1) · see it in the full Act
relevant person

(7) In sub-paragraph (6)(a) “relevant person”, in relation to land to which section 90B(5) of the Scotland Act 1998 applies, means the person having the management of that land.

Defined in Sch.3A para.104(7) · see it in the full Act

Cases considering Schedule 3A, paragraph 27 6

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Interprets

Temporary rights expressly concern apparatus already installed pending a paragraph 20 application. The provision would be ineffective if installation made the operator an occupier unable to apply for full rights. (see paras [145]-[149])

Cornerstone Telecommunications Infrastructure v Ashloch Ltd & Anor (Rev 2)

[2021] EWCA Civ 90 · 29 January 2021Interprets

Paragraph 27 provides temporary rights to maintain and repair installed apparatus. It is a limited exception and is linked to paragraph 20. (see paras [33], [62]-[66]) The temporary-rights regime applies where the specified notice, installed apparatus and removal circumstances exist. (see para [33]) A paragraph 20(2) notice is a condition of the temporary-rights procedure. (see para [33]) The notice must seek temporary rights concerning apparatus already installed on, under or over the land. (see para [33]) The person notified must have a right to require removal while the operator is not yet required to remove the apparatus. (see para [33]) The court may impose temporary rights on an interim basis. (see para [33]) The objective is to maintain the network service and keep apparatus properly adjusted and repaired pending determination of the proceedings. (see para [33]) Specified paragraph 20 and paragraph 22 provisions apply to temporary agreements as they apply to paragraph 20 agreements. (see para [33]) The provision is referred to in connection with the hypothetical approach to the paragraph 20 decision. (see para [33], [65]) The Tribunal must disregard the fact that apparatus is already installed when determining whether it should remain. This does not make an operator in situ equivalent to an operator entitled to invoke paragraph 20. (see paras [33], [65])

The University of London v Cornerstone Telecommunications Infrastructure Limited

[2019] EWCA Civ 2075 · 26 November 2019Interprets

Paragraph 27 concerns temporary rights relating to apparatus already installed and is linked to proceedings under paragraph 20. The contrast with paragraph 26 supported the conclusion that paragraph 26 is not similarly linked. (see paras [17], [72]-[74]) Paragraph 27(1)(b) links temporary rights to apparatus already installed on, under or over the land. This supported the distinction between paragraph 27 and the generally available interim power in paragraph 26. (see paras [72]-[74])

What each judgment says about Schedule 3A, paragraph 27 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F1419Words in Sch. 3A para. 27(2) inserted (26.4.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 66(5), 79(2); S.I. 2023/469, reg. 2
  2. F1420Words in Sch. 3A para. 27(6) inserted (15.3.2021 for specified purposes, 26.12.2022 for E.W. in so far as not already in force, 1.7.2023 for S. in so far as not already in force) by Telecommunications Infrastructure (Leasehold Property) Act 2021 (c. 7), s. 3(3)(b)(4), Sch. para. 4(8); S.I. 2022/1308, reg. 3(c)