23(1)The following provisions of this paragraph apply where a relevant undertaker is proposing to execute any undertaker’s works which involve or are likely to involve a temporary or permanent alteration of any [F1electronic communications apparatus] kept installed on, under or over any land for the purposes of the operator’s [F2network].U.K.
(2)The relevant undertaker shall, not less than 10 days before the works are commenced, give the operator a notice specifying the nature of the undertaker’s works, the alteration or likely alteration involved and the time and place at which the works will be commenced.
(3)Sub-paragraph (2) above shall not apply in relation to any emergency works of which the relevant undertaker gives the operator notice as soon as practicable after commencing the works.
(4)Where a notice has been given under sub-paragraph (2) above by a relevant undertaker to the operator, the operator may within the period of 10 days beginning with the giving of the notice give the relevant undertaker a counter-notice which may state either—
(a)that the operator intends himself to make any alteration made necessary or expedient by the proposed undertaker’s works; or
(b)that he requires the undertaker in making any such alteration to do so under the supervision and to the satisfaction of the operator.
(5)Where a counter-notice given under sub-paragraph (4) above states that the operator intends himself to make any alteration—
(a)the operator shall (subject to sub-paragraph (7) below) have the right, instead of the relevant undertaker, to execute any works for the purpose of making that alteration; and
(b)any expenses incurred by the operator in or in connection with the execution of those works and the amount of any loss or damage sustained by the operator in consequence of the alteration shall be recoverable by the operator from the undertaker in any court of competent jurisdiction.
(6)Where a counter-notice given under sub-paragraph (4) above states that any alteration is to be made under the supervision and to the satisfaction of the operator—
(a)the relevant undertaker shall not make the alteration except as required by the notice or under sub-paragraph (7) below; and
(b)any expenses incurred by the operator in or in connection with the provision of that supervision and the amount of any loss or damage sustained by the operator in consequence of the alteration shall be recoverable by the operator from the undertaker in any court of competent jurisdiction.
(7)Where—
(a)no counter-notice is given under sub-paragraph (4) above, or
(b)the operator, having given a counter-notice falling within that sub-paragraph, fails within a reasonable time to make any alteration made necessary or expedient by the proposed undertaker’s works or, as the case may be, unreasonably fails to provide the required supervision,
the relevant undertaker may himself execute works for the purpose of making the alteration or, as the case may be, may execute such works without the supervision of the operator; but in either case the undertaker shall execute the works to the satisfaction of the operator.
(8)If the relevant undertaker or any of his agents—
(a)executes any works without the notice required by sub-paragraph (2) above having been given, or
(b)unreasonably fails to comply with any reasonable requirement of the operator under this paragraph,
he shall, subject to sub-paragraph (9) below, be guilty of an offence and liable on summary conviction to a fine which—
(i)if the service provided by the operator’s [F2network] is interrupted by the works or failure, shall not exceed level 4 on the standard scale; and
(ii)if that service is not so interrupted, shall not exceed level 3 on the standard scale.
(9)Sub-paragraph (8) above does not apply to a Northern Ireland department.
(10)In this paragraph—
“relevant undertaker” means—
(a)any person (including a local authority) authorised by any Act (whether public general or local) or by any order or scheme made under or confirmed by any Act to carry on—
(b)any person (apart from the operator) to whom this code is applied [F6by a direction under section 106 of the Communications Act 2003]; and
(c)any person to whom this paragraph is applied by any Act amended by or under or passed after this Act;
“undertaker’s works” means—
(a)in relation to a relevant undertaker falling within paragraph (a) of the preceding definition, any works which that undertaker is authorised to execute for the purposes of, or in connection with, the carrying on by him of the undertaking mentioned in that paragraph;
(b)in relation to a relevant undertaker falling within paragraph (b) of that definition, any works which that undertaker is authorised to execute by or in accordance with any provision of this code; and
(c)in relation to a relevant undertaker falling within paragraph (c) of that definition, the works for the purposes of which this paragraph is applied to that undertaker.
(11)The application of this paragraph by virtue of paragraph (c) of each of the definitions in sub-paragraph (10) above to any person for the purposes of any works shall be without prejudice to its application by virtue of paragraph (a) of each of those definitions to that person for the purposes of any other works.
Textual Amendments
F1Words in Sch. 2 para. 23 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)
F2Words in Sch. 2 para. 23 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(d) (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)
F3Word inserted (E.W.) by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)( 2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 25 para. 68(3), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58
F4Subparagraph (a)(ii) repealed by Electricity Act 1989 (c. 29, SIF 44:1), ss. 112(3)(4), Sch. 17 para. 35(1), Sch. 18
F5Subparagraph (a)(iii) repealed (E.W.) by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58, Sch. 27
F6Sch. 2 para. 23(10): words in definition of "relevant undertaker" 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. 8 (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)
Modifications etc. (not altering text)
C1Sch. 2 para. 23 applied (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), ss. 50(3)(4), 75(9)(10)
C2Sch. 2 para. 23 applied (E.W.S.) by Airports Act 1986 (c. 31, SIF 9), s. 62 and Road Traffic (Driver Licensing and Information Systems) Act 1989 (c. 22, SIF 107), s. 13(1), Sch. 4 para. 4
C3Sch. 2 para. 23 applied (E.W.) by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4)(8), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58
C4Sch. 2 para. 23 applied (S.) by Housing (Scotland) Act 1987 (c. 26, SIF 61), ss. 95, 134, 335, Sch. 8 para. 11(1)
C5Sch. 2 para. 23 extended (E.W.S.) by Electricity Act 1989 (c. 29, SIF 44:1), s. 112(1)(3), Sch. 16 para. 1(6), Sch. 17 paras. 33, 35(1)
C6Sch. 2 para. 23 extended (E.W.S.) by Gas Act 1986 (c. 44, SIF 44:2), s. 67(1), Sch. 7 para. 2(7), Sch. 8 para. 33
C7Sch. 2 para. 23 applied (E.W.) (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 183, 223(2), Sch. 13 para. 4 (with savings in s. 183, Sch. 13 para. 1(1)) (as amended (26.5.2015) by Deregulation Act 2015 (c. 20), s. 115(3)(r), Sch. 23 para. 28(4)(f))
C8Sch. 2 para. 23 applied (E.W.) (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 178, 225(2), Sch. 22 para. 5 (with savings in s. 178, Sch. 22 para. 1(1))
C9Sch. 2 para. 23 applied (5.11.1993) by 1993 c. 42, s. 2, Sch. 2 para. 16.
Sch. 2 para. 23 applied (24.4.1994) by S.I. 1994/426 (N.I. 1), arts. 1(2), 12(1) (with arts. 2(3), 16)
Sch. 2 para. 23 amended (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 2(7); S.I. 1996/218, art. 2
Sch. 2 para. 23 applied (11.11.1996) by S.I. 1996/2714, art. 5(6)
Sch. 2 para. 23 restricted (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. IV para. 2(2)
Sch. 2 para. 23 applied (21.5.1997) by S.I. 1997/1266, art. 6(7)
C10Sch. 2 para. 23 applied (3.8.2005) by The Greater Manchester (Leigh Busway) Order 2005 (S.I. 2005/1918), art. 4(6) (with art. 50)
C11Sch. 2 para. 23 applied (N.I.) (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1, 245, Sch. 10 para. 4 (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)
C12Sch. 2 para. 23 applied (with modifications) (22.7.2008) by Crossrail Act 2008 (c. 18), s. 50, Sch. 17 Pt. 4 para. 2(1)(2)
C13Sch. 2 para. 23 applied (26.9.2012) by The Network Rail (Ipswich Chord) Order 2012 (S.I. 2012/2284), art. 1, Sch. 7 para. 12 (with art. 26(2))
C14Sch. 2 para. 23 applied (28.11.2014) by The Walney Extension Offshore Wind Farm Order 2014 (S.I. 2014/2950), art. 1, Sch. 12 Pt. 2 para. 2 (with arts. 38, 39, Sch. 12 Pt. 2 paras. 4, 5)
C15Sch. 2 para. 23 applied (31.12.2014) by The Hornsea One Offshore Wind Farm Order 2014 (S.I. 2014/3331), art. 1, Sch. 12 para. 32 (with arts. 37, 38)
C16Sch. 2 para. 23 applied (25.3.2016) by The Thorpe Marsh Gas Pipeline Order 2016 (S.I. 2016/297), art. 1, Sch. 9 Pt. 4 para. 3 (with art. 39)
C17Sch. 2 para. 23 applied (7.9.2016) by The Hornsea Two Offshore Wind Farm Order 2016 (S.I. 2016/844), art. 1(2), Sch. 12 Pt. 3 para. 3 (with arts. 37, 38)
C18Sch. 2 para. 23 applied (with modifications) (23.2.2017) by High Speed Rail (London - West Midlands) Act 2017 (c. 7), s. 70(1), Sch. 33 para. 33(1)(2)
C19Sch. 2 para. 23 applied (29.8.2017) by The East Anglia THREE Offshore Wind Farm Order 2017 (S.I. 2017/826), art. 1, Sch. 8 para. 12 (with arts. 36, 37, Sch. 8 paras. 15, 34)
C20Sch. 2 para. 23(8) applied (with modifications) (24.4.1994) by S.I. 1994/426 (N.I. 1), arts. 1(2), 12(2) (with arts. 2(3), 16)