Schedule 1: The electronic communications code Part 7: Conferral of transport land rights and their exercise
Part 7 of the code applies to "transport land" and "transport undertakers", which are defined in paragraph 46. Part 7 rewrites what were paragraphs 12 to 14 of the existing code. The provisions set out the rules that apply when an operator wishes to cross (with their electronic communications apparatus and networks) a canal, tramway or railway, so that the interests of electronic communications network and the relevant transport undertaker (as defined) are appropriately protected. The relevant provisions in the existing code were considered in some detail by the Court of Appeal in Geo Networks Limited v The Bridgewater Canal Company Limited [2010] EWCA Civ, 1348, an important case which clarified the meaning and effect of the relevant provisions in the existing code and which is still of relevance to the equivalent redrafted provisions in the new code. Transport land rights do not require the operator to seek an agreement under Part 2 (or Part 4) of the code: they are conferred on an operator automatically as code rights by paragraph 47(1), subject to strict regulation of those rights by the remaining provisions of Part 7.
	Paragraph 48 defines a "transport land right". Paragraphs 48(2) and (3) largely provide that the operator is not required to cross the transport land by the most direct route but permits the operator to go alongside the railway, canal or tramway for up to 400 metres, for example if the land immediately opposite the point at which the line enters the transport land is unsuitable for taking a line across (e.g. a reservoir).
	The exercise of transport land rights must not interfere with traffic on the transport undertaking (paragraph 48(4)). The exercise of rights by the operator is subject to a notice procedure (in non emergency cases) (paragraph 49); and the transport undertaker may object to the proposed works (paragraph 50).
	Different notice procedures apply if the operator needs to carry out emergency works and the transport undertaker can require the operator to pay compensation when the emergency procedure is relied on by the operator (paragraph 51).
	Disputes between the operator and transport undertaker, concerning objections to proposed works and amount of the compensation to be paid, are referred to expert arbitration (paragraph 52) rather than to the court. The arbitrator’s powers include the power to order the operator to pay compensation for loss or damage and consideration for the right of the operator to carry out the work.
	Paragraph 53 allows a transport undertaker to give notice requiring an operator to alter the line or other electronic communications apparatus on the grounds that it will interfere with the carrying on of the transport undertaking. Disputes about altering the electronic communications apparatus so installed are referred to the court (not to an expert arbitrator). In determining whether to make an order, the court must have regard to the public interest in there being access to a choice of high quality electronic communications services.
	Paragraph 54 is a provision not found in the existing code. It provides that where land ceases to be transport land, the operator may continue to exercise the transport land rights in accordance with Part 7 in relation to apparatus already on the land and in relation to substantially similar replacements. This is subject to the ability of the occupier of the land to give 12 months’ notice to terminate such rights. If the occupier takes that step, the operator (the Part 7 rights having ended) would need to secure new rights by agreement under Part 2 or court order under Part 4.
	Paragraph 55 provides that a criminal offence is committed if an operator commences works in contravention of the provisions of Part 7. This replicates the provisions in the existing code and underlines the seriousness of protecting transport undertakings from works which do not follow the required notice procedures. An operator who is guilty of an offence will be liable on conviction to a fine not exceeding level 3 on the standard scale.