Communications Act 2003, Schedule 3A, paragraph 37

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

SCHEDULE 3A The electronic communications code

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 since the coming into force of this code been bound by a code right entitling an operator to keep the apparatus on, under or over the land.

(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 mentioned in paragraph 26(7) and (8),

[F1433 (aa) as mentioned in paragraph 27G(1) and (4);F1433]

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

(c) as the result of an order under paragraph 32(4) or 34(4) or (6), or

(d) where the right was granted by a lease to which Part 5 of this code does not apply.

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) In the application of sub-paragraph (4)(b) to Scotland the reference to a covenant enforceable by the landowner is to be read as a reference to a contractual term which is so enforceable.

(6) 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 used for that purpose.

(7) 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.

(8) 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 54(9), 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.

(9) This paragraph does not affect rights to require the removal of apparatus under another enactment (see paragraph 41).

Definitions used in Schedule 3A, paragraph 37 5

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
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
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
enactment

“enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;

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

Cases considering Schedule 3A, paragraph 37 3

Gravesham Borough Council v On Tower UK Limited

[2024] UKUT 151 (LC) · 4 June 2024Defines

Defines the circumstances in which a landowner may require removal of apparatus. The provision helped identify circumstances in which a genuine Part 4 application may coincide with a removal application. Applies the removal condition arising where a Code right has ended or ceased to bind the landowner. It illustrates when an operator may be vulnerable to removal and potentially seek fresh rights.

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

[2021] EWCA Civ 90 · 29 January 2021Defines

Paragraph 37 identifies circumstances in which a person with an interest in land may require removal of apparatus. (see para [43]) The removal right is available to a person with an interest in the land, whether or not that person is or was an occupier or site provider. (see para [43]) Removal may be sought where the right was granted by an agreement to which Part 5 does not apply, subject to the statutory qualification. (see para [43])

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2019] EWCA Civ 1755 · 22 October 2019Limits

The court considered the landowner’s statutory ability to seek removal of apparatus. That ability did not make the landowner the factual occupier of the site (see paras [70]-[74]; [80]).

What each judgment says about Schedule 3A, paragraph 37 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F1433Sch. 3A para. 37(3)(aa) 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(9); S.I. 2022/1308, reg. 3(c)