SCHEDULES
SCHEDULE 2

The Telecommunications Code

Application of code to existing systems
28
1
Subject to the following provisions of this paragraph, references in this code to electronic communications apparatus installed on, under or over any land include references to electronic communications apparatus so installed before this code comes into force.
2
Without prejudice to sub-paragraph (1) above, any line or other apparatus lawfully installed before this code comes into force which if this code had come into force could have been installed under paragraph 12 of this code shall (subject to sub-paragraph (6) below) be treated for the purposes of this code as if it had been so installed.
3
Any consent given (or deemed to have been given) for the purposes of any provision of the Telegraph Acts 1863 to 1916 before this code comes into force shall—
a
have effect after this code comes into force as an agreement given for the purposes of this code, and
b
so have effect, to any extent that is necessary for ensuring that the same persons are bound under this code as were bound by the consent, as if it were an agreement to confer a right or, as the case may require, to bind any interest in land of the person who gave (or is deemed to have given) the consent.
4
Where by virtue of sub-paragraph (3) above any person is bound by any right, that right shall not be exercisable except on the same terms and subject to the same conditions as the right which, by virtue of the giving of the consent, was exercisable before this code comes into force; and where under any enactment repealed by this Act those terms or conditions included a requirement for the payment of compensation or required the determination of any matter by any court or person, the amount of the compensation or, as the case may be, that matter shall be determined after the coming into force of this code in like manner as if this Act had not been passed.
5
A person shall not be entitled to compensation under any provision of this code if he is entitled to compensation in respect of the same matter by virtue of sub-paragraph (4) above.
6
Neither this code nor the repeal by this Act of any provision of the Telegraph Acts 1863 to 1916 (which contain provisions confirming or continuing in force certain agreements) shall prejudice any rights or liabilities (including any rights or liabilities transferred by virtue of section 60 of this Act) which arise at any time under any agreement which was entered into before this code comes into force and relates to the installation, maintenance, adjustment, repair, alteration or inspection of any electronic communications apparatus or to keeping any such apparatus installed on, under or over any land.
7
Any person who before the coming into force of this code has—
a
given a notice (“the Telegraph Acts notice”) under or for the purposes of any provision of the Telegraph Acts 1863 to 1916 to any person, or
b
made an application under or for the purposes of any such provision (including, in particular, an application for any matter to be referred to any court or person),
may give a notice to the person to whom the Telegraph Acts notice was given or, as the case may be, to every person who is or may be a party to the proceedings resulting from the application stating that a specified step required to be taken under or for the purposes of this code, being a step equivalent to the giving of the Telegraph Acts notice or the making of the application, and any steps required to be so taken before the taking of that step should be treated as having been so taken.
8
A notice may be given under sub-paragraph (7) above with respect to an application notwithstanding that proceedings resulting from the application have been commenced.
9
Where a notice has been given to any person under sub-paragraph (7) above, that person may apply to the court for an order setting aside the notice on the ground that it is unreasonable in all the circumstances to treat the giving of the Telegraph Acts notice or the making of the application in question as equivalent to the taking of the steps specified in the notice under that sub-paragraph; but unless the court sets aside the notice under that sub-paragraph, the steps specified in the notice shall be treated as having been taken and any proceedings already commenced shall be continued accordingly.
10
Where before this code comes into force anything has, in connection with the exercise by the operator of any power conferred on him by the Telegraph Acts 1863 to 1916, been done under or for the purposes of the street works code contained in the Public Utilities Street Works Act 1950, that thing shall, in so far as it could have been done in connection with the exercise of any power conferred by this code, have effect after this code comes into force, without any notice being given under sub-paragraph (7) above, as if it had been done in connection with the power conferred by this code.
11
In relation to anything done under section 5 of Schedule 3 to the Water Act 1945 or section 5 of Schedule 4 to the Water (Scotland) Act 1980 before the coming into force of this code, the preceding provisions of this paragraph shall have effect, so far as the context permits, as if references to the Telegraph Acts 1863 to 1916 included references to that section.
12
References in this paragraph to the coming into force of this code shall have effect as references to the time at which the code comes into force in relation to the operator.
Words in Sch. 2 para. 28 substituted (25.7.2003 for certain purposes, 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 106, 406, 408, 411, Sch. 3 para. 5(a) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with art. 3(2) (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) (with art. 11)
1950 c. 39.
1945 c. 42.
1980 c. 45.
Sch. 2 excluded by Broadcasting Act 1990 (c. 42, SIF 96), s. 189(1)
Sch. 2: definition applied (E.W.)(1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 221(1), 225(2).
Sch. 2: definition applied (E.W.)(1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 219(1), 223(2).
Sch. 2: modified by Greater Manchester (Light Rapid Transit System) Act 1991 (c. xvi, SIF 200), s.10.
Sch. 2 modified (12.11.1992) by Greater Manchester (Light Rapid Transit System) Act 1992 (c. xviii), s.10
Sch. 2 applied (27.7.1993) by 1993 c. xii, s. 1, Sch. Pt. IV s. 28.
Sch. 2 modified (26.5.1994) by 1994 c. vi, s. 10
Sch. 2 applied (E.W.) (2.5.2006 for E., 11.5.2006 for W.) by The Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (S.I. 2006/1177), arts. 1, 2, Sch. Pt. I