SCHEDULES
C4F1SCHEDULE 3AThe electronic communications code
Sch. 3A applied by S.I. 1991/1220 (N.I. 11), art. 104(5) (as substituted (28.12.2017) by The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 28(2)(c))
C1C3C2PART 6Rights to require removal of electronic communications apparatus
Sch. 3A Pt. 6 excluded (11.2.2021) by High Speed Rail (West Midlands - Crewe) Act 2021 (c. 2), s. 64(1), Sch. 32 para. 33(2) (with Sch. 32 para. 32(1))
Sch. 3A Pt. 6 applied by 1985 c. 68, s. 298(2) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 19; S.I. 2017/1286, reg. 2(d))
Sch. 3A Pt. 6 excluded by 1996 c. 61, Sch. 15 Pt. 4 para. 2(1) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 38(3); S.I. 2017/1286, reg. 2(d))
How are other rights to require removal of apparatus enforced?
41
1
The right of a person (a “third party”) under an enactment other than this code, or otherwise than under an enactment, to require the removal of electronic communications apparatus on, under or over land is exercisable only in accordance with this paragraph.
2
The third party 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
Within the period of 28 days beginning with the day on which notice under sub-paragraph (2) is given, the operator may give the third party notice (“counter-notice”)—
a
stating that the third party is not entitled to require the removal of the apparatus, or
b
specifying the steps which the operator proposes to take for the purpose of securing a right as against the third party to keep the apparatus on the land.
6
If the operator does not give counter-notice within that period, the third party is entitled to enforce the removal of the apparatus.
7
If the operator gives the third party counter-notice within that period, the third party may enforce the removal of the apparatus only in pursuance of an order of the court that the third party is entitled to enforce the removal of the apparatus.
8
If the counter-notice specifies steps under paragraph (5)(b), the court may make an order under sub-paragraph (7) only if it is satisfied—
a
that the operator is not intending to take those steps or is being unreasonably dilatory in taking them; or
b
that taking those steps has not secured, or will not secure, for the operator as against the third party any right to keep the apparatus installed on, under or over the land or to re-install it if it is removed.
9
Where the third party is entitled to enforce the removal of the apparatus, under sub-paragraph (6) or under an order under sub-paragraph (7), the third party 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 third party to sell apparatus etc).
10
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 third party by virtue of paragraph 44(7), the third party may make an application to the court for an order under paragraph 44(3).
11
An order made on an application under this paragraph need not include provision within paragraph 44(1)(b) or (3)(d) unless the court thinks it appropriate.
12
Sub-paragraph (9) is without prejudice to any other method available to the third party for enforcing the removal of the apparatus.
Sch. 3A inserted (31.7.2017 for the purpose of making regulations under Sch. 3A para. 95, 22.11.2017 but only in relation to Sch. 3A para. 106, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 1 (with Sch. 2); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(b)