Communications Act 2003, Schedule 3A, paragraph 40

How does a landowner or occupier enforce removal of apparatus?

SCHEDULE 3A The electronic communications code

40 (1) The right of a landowner or occupier to require the removal of electronic communications apparatus on, under or over land, under paragraph 37 or 38, is exercisable only in accordance with this paragraph.

(2) The landowner or occupier may give a notice to the operator whose apparatus it is requiring the operator—

(a) to remove the apparatus, and

(b) to restore the land to its condition before the apparatus was placed on, under or over the land.

(3) The notice must—

(a) comply with paragraph 89 (notices given by persons other than operators), and

(b) specify the period within which the operator must complete the works.

(4) The period specified under sub-paragraph (3) must be a reasonable one.

(5) Sub-paragraph (6) applies if, within the period of 28 days beginning with the day on which the notice was given, the landowner or occupier and the operator do not reach agreement on any of the following matters—

(a) that the operator will remove the apparatus;

(b) that the operator will restore the land to its condition before the apparatus was placed on, under or over the land;

(c) the time at which or period within which the apparatus will be removed;

(d) the time at which or period within which the land will be restored.

(6) The landowner or occupier may make an application to the court for—

(a) an order under paragraph 44(1) (order requiring operator to remove apparatus etc ), or

(b) an order under paragraph 44(3) (order enabling landowner to sell apparatus etc ).

(7) If the court makes an order under paragraph 44(1), but the operator does not comply with the agreement imposed on the operator and the landowner or occupier by virtue of paragraph 44(7), the landowner or occupier may make an application to the court for an order under paragraph 44(3).

(8) On an application under sub-paragraph (6) or (7) the court may not make an order in relation to apparatus if an application under paragraph 20(3) has been made in relation to the apparatus and has not been determined.

Definitions used in Schedule 3A, paragraph 40 4

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
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
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

Cases considering Schedule 3A, paragraph 40 6

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

[2021] EWCA Civ 90 · 29 January 2021Interprets

Paragraph 40 provides the application procedure for enforcing a removal notice. (see paras [44], [75]-[80]) The provision is referred to as one route by which a person may require removal of apparatus. (see para [43]) The Tribunal cannot order removal while an undetermined paragraph 20(3) application relating to the apparatus exists. This provision does not enlarge paragraph 20 and is not limited to the same land. (see paras [44], [75]-[80])

Gravesham Borough Council v On Tower UK Limited

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

Confirms the enforcement mechanism for a removal right. It did not provide an independent source of jurisdiction for On Tower’s Part 4 application. Confirms the circumstances in which the removal process is engaged. The provision was relevant to the requirement that an operator seeking temporary rights face a present removal entitlement. Confirms that the landowner may apply to the Tribunal for a removal order if the apparatus is not removed. The existence of that procedure did not validate an otherwise premature paragraph 20/27 notice. Limits the Tribunal’s ability to make a removal order while a paragraph 20(3) application remains undetermined. It regulates sequencing but does not authorise a Part 4 application where no substantive entitlement to make one exists (see paras [39]-[42]).

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022

A pending paragraph 20 application prevents a removal order concerning the same apparatus. This assumes that an operator with apparatus already installed may make a valid paragraph 20 application. (see para [150])

What each judgment says about Schedule 3A, paragraph 40 is in the case-law panel in the full Act.