Commentary on provisions of the Act Part 3: Electronic communications code networks
Paragraph 32 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the operators concerned agree to vary them. The operators to whom these provisions apply are operators of an electric communications code network as defined in the Communications Act 2003.
	The electronic communications code is the code set out in Schedule 2 to the Telecommunications Act 1984, and an electric communications code network is so much of an electric communications network or conduit system provided by an electronic communications code operator, (i.e. a person to whom the code is applied by a direction of the Secretary of State under the Communications Act) as is not excluded from the application of the code by such a direction.
	The protection conferred by this Part applies to any works authorised by the Act ("the authorised works").
	Paragraph 33 clarifies the relation between the operation of the electronic communications code, Part 3 of the New Roads and Street Works Act 1991 (which regulates street works) and section 272 of the Town and Country Planning Act 1990 (which addresses removal of apparatus in land which has been compulsorily acquired).
	Paragraph 23 of the electronic communications code (which imposes a procedure for the alteration of telecommunications apparatus by statutory undertakers) is to apply for the purpose of the authorised works except where those purposes are regulated by or under the New Roads and Streets Works Act 1991 (i.e. where the apparatus is in a street), or where the nominated undertaker has a right to remove telecommunications apparatus by virtue of the default powers contained in section 272 of the Town and Country Planning Act 1990 or in relation to removal of apparatus in streets stopped up under the powers of the Act (which is addressed in sub-paragraphs (3) to (8) of paragraph 35 of this Part). Paragraph 21 of the electronic communications code (which restricts other persons’ rights to require the removal of electronic communications apparatus) is excluded in the same circumstances.
	Paragraph 34 provides that the powers of Schedule 4 or the temporary stopping up or diversion of highways are not to affect the statutory rights of operators to use that street for the purpose of installing or maintaining apparatus.
	Paragraph 35 protects operators’ rights of access to apparatus in streets which have been permanently stopped up under the powers of the Act, but this protection is subject to the nominated undertaker’s rights to require the removal of that apparatus or to alter it.
	The nominated undertaker is required to give notice of the proposed stopping up and the operator has a right and, where reasonably requested by the nominated undertaker, an obligation to move its apparatus. There is provision for the undertaker to recover its costs but sub-paragraph (8) provides that the provisions of this Part dealing with the recovery of costs for relocation works are not to apply where the relocation is required as a result of works which are major transport works or major highway works for the purpose of Part 3 of the New Roads and Street Works Act 1991. In such a case the cost sharing regime provided for under that Act will govern recovery of costs and consequently the amount recoverable will be discounted by such amount as is prescribed from time to time under the cost-sharing regulations made under section 85 of that Act (the amount is currently 18% or 7.5% depending on the nature of the works).
	Paragraph 36 addresses the terms which are to apply to apparatus which has been relocated. These terms are to be agreed or otherwise determined in accordance with the disputes procedure under paragraph 39, and any person making a determination under paragraph 39 must have regard to any template provisions issued by the appropriate Ministers (following consultation with the undertakers). In this case and paragraph 39 the appropriate Ministers are the Secretary of State for Transport and the Secretary of State for Culture, Media and Sport acting jointly.
	Paragraph 37 provides an indemnity for operators in respect of damage to apparatus or interruptions to the supply of its services caused by the construction of the authorised works (or by subsidence resulting from those works). This does not apply to apparatus governed by Part 3 of the New Roads and Street Works Act 1991 (i.e. works in streets).
	Paragraph 38 provides that, where Network Rail Infrastructure Limited is the nominated undertaker, this Part of the Schedule will have effect subject to any existing agreements Network Rail may have with operators.
	Paragraph 39 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of section 64). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the appropriate Ministers who must have regard to any matters specified by the appropriate Ministers on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for Ministers to be involved in the resolution of such disputes. The cost of the dispute is to be borne as directed by the appointed decision-maker.