Schedule 1: The electronic communications code Part 6: Rights to require removal of electronic communications apparatus
Paragraph 36 introduces Part 6 of the code, which sets out who can require the removal of electronic communications apparatus, and / or require the restoration of the land to its former condition, the circumstances in which these rights arise and the procedure that must be followed. Paragraphs 21 and 22 of the existing code included provisions that correspond to some extent to this part, but the provisions in Part 6 of the code are much more detailed.
	Paragraph 37 provides that a landowner may require the removal of apparatus only if one of five conditions is met. The effect of paragraph 37(9) is important: if a landowner has an additional legal right or relationship with the operator, so as to have legal entitlement to require removal of apparatus also under an enactment (other than the code), or otherwise than under an enactment, then the landowner can exercise those rights to require removal under paragraphs 41 and 42 and in so doing is acting as a "third party" for the purposes of those paragraphs.
	Paragraph 38 sets out the two conditions, both of which must be met, for a landowner or occupier of neighbouring land (as defined) to be entitled to require the removal of electronic communications apparatus that obstructs access to their land. This is relevant where apparatus situated on land A obstructs access to land B. It is important to note that although land A and land B might be adjoining or situated closely together, that is not an essential requirement in the context of paragraph 38. For example if there was a track leading from a road, across land A, then through land C to land B, and electronic communications apparatus was installed across the track, on land A, then access to land B could be obstructed even though the obstruction might be situated, say, two miles or more from land B, and on land not adjoining land B. See also paragraph 13 of the code.
	Paragraph 39 makes provision enabling landowners and occupiers of neighbouring land (as defined) to require an operator to disclose whether they own apparatus on the land pursuant to a code right. There are costs consequences for the operator in any proceedings to remove the apparatus if they have such rights but fail to disclose the information within 3 months.
	Paragraph 40 makes provision for enforcing the removal of apparatus when the landowner is no longer entitled to keep it installed. In order to protect networks and apparatus, removal may be enforced only in accordance with the procedures described, which encourage the parties to agree how apparatus will be removed. If there is no agreement, or the operator does not comply with the agreement for removal, the landowner can apply to the court for an order enforcing removal.
	Paragraph 41 makes provision for persons entitled to remove apparatus under another enactment, or on other legal grounds. Paragraph 41 defines such a person as a "third party" to distinguish their entitlement to remove apparatus from the entitlement to remove apparatus of a person acting as a landowner (see paragraph 37) and from the entitlement of an occupier or landowner of neighbouring land (see paragraph 38). This might apply for example in the case of a planning authority which seeks to remove apparatus that is installed in breach of planning legislation. Removal must be in accordance with the procedure set out in paragraph 41, in order to protect apparatus and networks. The provisions are based on those in paragraph 21 of the existing code. Note that a third party, as defined, may also in some circumstances be a landowner. However if such a landowner were exercising rights under paragraph 41 or 42, they would be acting as a third party for the purposes of those paragraphs. See also the explanatory note for paragraph 37(9) above.
	Paragraph 42 sets out how paragraph 41 applies in cases where a third party has a right, arising from another statute or enactment, to require the alteration of apparatus because of changes to a street, road or other public right of way. These provisions are based on those in paragraph 21(10) of the existing code, and apply in the same way.
	Paragraph 43 makes provision for a landowner or occupier of land to require an operator to restore land to its original condition (before the exercise of a code right). The procedure encourages the landowner and operator to reach agreement, but enables the landowner to seek a court order if agreement is not reached. The right under this paragraph to restore the land is not dependent on apparatus being removed from the land. It might for example apply where apparatus has previously been removed from the land but the land was not properly restored to its original condition, and it might apply where the land was disturbed in preparation for installing apparatus but the apparatus was not installed for some reason.
	Paragraph 44 sets out the orders a court may make to enforce removal of apparatus under paragraphs 40 – 43. These include an order for the operator to pay compensation for the period during which the apparatus was on the land after the right to remove arose (paragraph 44(5)). If the operator does not comply with an order to remove, the court may permit the landowner to remove the apparatus. Paragraph 44(3) includes provisions corresponding to paragraphs 21(7) and 21(8) of the existing code.